JUDICIAL   TENURE   IN   THE 
UNITED   STATES 


JUDICIAL 
IN  THE  UNITED  STATES 

WITH  ESPECIAL  REFERENCE  TO 
THE  TENURE  OF  FEDERAL  JUDGES 

WILLIAM  S.  CARPENTER,  PH.D. 

DEPARTMENT   OF   POLITICAL   SCIENCE 
UNIVERSITY   OF    WISCONSIN 


NEW  HAVEN 
YALE   UNIVERSITY   PRESS 

LONDON:  HUMPHREY  MILFORD 

OXFORD  UNIVERSITY  PRESS 

MDCCCCXVIII 


COPYRIGHT,   1918,   BY 
YALE   UNIVERSITY   PRESS 


First  published,  April,  1918 


PREFACE 

The  following  study  is  designed  to  present 
the  historical  development  of  two  phases  of 
the  American  judicial  system:  the  influence 
of  the  exercise  of  the  doctrine  of  judicial 
review  upon  the  position  of  the  courts,  and 
the  political  reactions  affecting  the  tenure  of 
the  judges. 

The  growth  of  the  doctrine  of  judicial 
review  in  the  formative  period  of  Ameri- 
can institutions  had  a  profound  influence 
upon  subsequent  constitutional  development. 
When  the  judges,  with  popular  approval, 
became  the  custodians  of  the  Constitution  a 
really  independent  judiciary  became  neces- 
sary to  enable  the  courts  fearlessly  to  mark 
out  the  provinces  of  the  other  departments 
of  government.  Attempts  to  check  the  exer- 
cise of  judicial  power  have  invariably  taken 
the  form  of  assaults  upon  the  security  of 
tenure  of  the  judicial  office.  But  even  in  the 
heat  of  partisan  conflict  the  courts  have 
usually  withstood  the  attacks  of  persons  who 


8842 


vi  PREFACE 

would  destroy  their  independence.  And  in 
the  end  popular  sentiment  has  generally  sup- 
ported the  courts. 

The  relative  merits  of  appointive  and  elec- 
tive courts  have  been  a  topic  of  much  discus- 
sion. But  conclusions  based  on  a  compara- 
tive study  of  the  results  of  these  two  modes 
of  selection  are  almost  valueless.  The  method 
of  selecting  judges  is  best  determined  by 
local  conditions.  It  is  by  keeping  the  courts 
free  from  executive  or  legislative  control  and 
removing  them  from  the  influence  of  tem- 
porary popular  majorities  that  the  independ- 
ence of  the  judiciary  is  maintained. 

The  study  has  dealt  chiefly  with  the  tenure 
of  the  federal  judges,  although  popular 
movements  which  have  resulted  in  important 
changes  in  the  State  courts  have  been  con- 
sidered. At  the  close  of  the  narrative  a 
chapter  of  conclusions  summarizes  the  prob- 
lems involved  in  securing  the  tenure  of  the 
judicial  office  at  the  present  time. 

I  wish  to  acknowledge  my  indebtedness  to 
Professor  Henry  Jones  Ford  of  Princeton 
University  for  helpful  suggestions.  My 
associates  in  the  Department  of  Political 
Science  in  the  University  of  Wisconsin  have 


PREFACE  vii 

read  portions  of  the  manuscript  and  have 
made  important  corrections.  To  Professor 
Edward  S.  Corwin  of  Princeton  University 
I  am  especially  indebted  not  only  for  the 
reading  of  the  entire  manuscript  but  for 
valuable  suggestions  and  stimulating  criti- 
cism throughout  the  preparation  of  the  work. 

WILLIAM  S.  CARPENTER. 

Madison,  Wisconsin, 
December  10, 1917. 


Preface 

Chapter  I. 

Chapter  II. 

Chapter  III. 

Chapter  IV. 

Chapter  V. 
Index 


CONTENTS 


Establishment  of  a  Fed- 
eral Judiciary 

Congress  and  the  In- 
ferior Courts  . 

The  Eemoval  of  Judges 

Selection  and  Tenure  of 
Judges  . 

Conclusions 


PAGE 


51 
101 

155 
194 
225 


ESTABLISHMENT  OF  A  FEDERAL 
JUDICL1RY 

The  judiciary  in  the  United  States  has  be- 
come an  institution  of  paramount  impor- 
tance, enjoying  a  security  of  tenure  and  a 
scope  of  influence  elsewhere  unknown  among 
modern  governments.  It  has  been  said  that 
in  this  country  we  have  no  law  until  the 
courts  have  had  opportunity  to  pass  upon 
the  validity  of  legislative  enactments  and 
have  admitted  them  to  be  in  harmony  with 
the  Constitution.  Yet  this  great  power 
lodged  in  the  courts  flows  from  fundamental 
principles  and  is,  indeed,  a  cornerstone  of 
American  government. 

That  the  courts  of  the  United  States  may 
be  competent  to  exercise  the  great  functions 
laid  upon  them,  involving  as  they  do  a  check 
upon  legislative  action,  judicial  independ- 
ence is  peculiarly  essential.  Such  independ- 
ence demands  that  the  judges  shall  not  only 


2  JUDICIAL  TENURE  IN 

be  free  from  executive  and  legislative  con- 
trol, but  that  they  shall  be  free  from  the 
political  ^ag&ries  of  the  people  themselves, 
in  order  that  within  their  sphere  of  govern- 
ment the  courts  may  move  unhindered  and 
without  fear.  To  secure  such  conditions  has 
been  the  conscious  effort  of  civil  polity 
throughout  the  history  of  our  nation. 

I 

The  colonial  judiciary  had  been  the  sub- 
ject of  bitter  complaint.  One  of  the  griev- 
ances cited  in  the  Declaration  of  Independ- 
ence against  George  III  was  that  "he  has 
made  judges  dependent  upon  his  will  alone 
for  the  tenure  of  their  offices  and  the  amount 
and  payment  of  their  salaries."  This,  more- 
over, was  contrary  to  the  practice  in  Eng- 
land where  one  of  the  reforms  of  the  Long 
Parliament  had  been  the  establishment  of 
judicial  commissions  during  good  behavior.1 
The  same  tenure  had  been  granted  the  colo- 
nial judges  down  to  1761  when  the  King, 
acting  upon  the  advice  of  the  Board  of 
Trade,  altered  the  commissions  to  a  tenure 
during  the  royal  pleasure  on  the  ground  that 

iCobbett:  Parliamentary  History,  ii,  p.  702. 


THE  UNITED  STATES  3 

the  state  of  learning  in  the  colonies  was  so 
low  that  it  was  with  difficulty  that  men  could 
be  found  competent  to  administer  the  judicial 
offices.2  In  August,  1772,  the  King,  finding 
that  the  want  of  a  fixed  allowance  in  the 
colonies  for  the  administration  of  justice 
made  judicial  office  very  unattractive  and 
prevented  the  establishment  of  an  effective 
judiciary  system,  granted  a  salary  to  the 
judges  of  the  superior  court  of  Massachu- 
setts, forbidding  them  to  receive  the  custom- 
ary grants  from  the  House  of  Bepresenta- 
tives,  and  the  Council  and  Governor.  This 
action  of  the  King  aroused  much  opposition, 
and  a  discussion  in  the  public  press  followed 
in  which  John  Adams  in  a  series  of  essays 
condemned  the  subjection  of  the  colonial  ju- 
diciary to  the  crown.3  Popular  resentment 
rose  to  such  heights,  indeed,  that  an  attempt 
was  made  in  1774  to  impeach  Chief  Justice 
Oliver  before  the  assembly,  and  grand  jurors 
and  petit  jurors  refused  to  take  their  oaths 
in  his  court.4 

2  N.  C.  Colonial  Records,  vi,  pp.  582-586. 
s  Adams:  Writings,  iii,  p.  513  et  seq. 
*  Ibid.,  i,  pp.  315-317. 


4  JUDICIAL  TENURE  IN 

II 

As  a  result  of  this  experience,  the  colonists 
embarked  upon  the  business  of  establishing 
judicial  departments  in  their  first  State  con- 
stitutions with  no  little  concern.  In  theory 
it  was  universally  agreed  that  the  judges 
must  be  independent,  and  to  this  end  the 
usual  tenure  in  the  early  constitutions  was 
during  good  behavior.  This  was  the  tenure 
provided  in  the  constitutions  of  Massachu- 
setts, Delaware,  Maryland,  Virginia,  North 
Carolina,  South  Carolina,  and  in  those  drawn 
up  in  New  Hampshire  and  Vermont.5  New 
York  had  the  same  tenure,  except  that  there 
the  judges  retired  at  the  age  of  sixty  years.6 
In  Pennsylvania  and  New  Jersey  the  appoint- 
ments were  for  seven  years.7  In  Connecticut 
and  Ehode  Island,  where  they  did  not  frame 
constitutions  but  continued  their  charter  gov- 
ernments, the  judges  were  still  appointed 
annually  by  the  legislature.  In  Georgia  the 
people  elected  their  judges  annually.8 

s  Thorpe:  Charters  and  Constitutions,  pp.  564,  1689,  1905, 
2466,  2791,  3246,  3746,  3817. 

«Ibid.,  p.  2634. 

7  Ibid.,  pp.  2596,  3088. 

s  Horace  Davis :  American  Constitutions,  J.  H.  U.  Studies, 
Series  3,  p.  507. 


THE  UNITED  STATES  5 

But  the  principle  of  legislative  supremacy, 
which  in  1776  was  so  dominant  both  in  Eng- 
land and  in  the  colonies,  caused  much  in- 
fluence over  the  judiciary  to  be  exercised  by 
the  assemblies.  In  most  of  the  States  the  leg- 
islature controlled  the  appointment  of  the 
judges.  In  Connecticut,  Ehode  Island,  New 
Jersey,  Virginia,  North  Carolina,  and  South 
Carolina  the  legislature  appointed  directly.9 
In  New  Hampshire,  Massachusetts,  Penn- 
sylvania, and  Maryland  the  appointments 
were  made  by  the  Governor  and  Council, 
while  in  New  York  the  Governor  acted  with 
a  special  Council  of  Appointment.10  Judicial 
appointments  in  Delaware  were  made  by  the 
legislature  and  the  executive.11 

On  the  other  hand,  the  theoretical  basis  on 
which  the  revolutionary  state  governments 
rested  was  a  separation  of  the  powers  of  gov- 
ernment as  laid  down  by  Montesquieu,  and 
on  paper  this  doctrine  was  well  defined.  In 
practice,  however,  the  case  was  very  different. 
The  Massachusetts  constitution  of  1780  de- 
clared that : 

»  Thorpe:  pp.  533,  2596,  2791,  3218,  3246,  3817. 

10  Ibid.,  p.  2633. 

11  Ibid.,  p.  564. 


6  JUDICIAL  TENURE  IN 

In  the  government  of  this  commonwealth,  the 
legislative  department  shall  never  exercise  the 
executive  and  judicial  powers,  or  either  of  them; 
the  executive  shall  never  exercise  the  legislative 
and  judicial  powers,  or  either  of  them ;  the  judicial 
shall  never  exercise  the  legislative  and  executive 
powers,  or  either  of  them;  to  the  end  that  it  may 
be  a  government  of  laws,  and  not  of  men.12 

But  we  find  Madison  saying: 

If  we  look  into  the  constitutions  of  the  several 
States  we  find  that,  notwithstanding  the  emphati- 
cal  and,  in  some  instances,  the  unqualified  terms 
in  which  this  axiom  has  been  laid  down,  there  is 
not  a  single  instance  in  which  the  several  depart- 
ments of  power  have  been  kept  absolutely  sepa- 
rate and  distinct.  ...  It  is  but  too  obvious  that 
in  some  instances  the  fundamental  principle  under 
consideration  has  been  violated  by  too  great  a 
mixture,  and  even  an  actual  consolidation  of  the 
different  powers;  and  that  in  no  instance  has  a 
competent  provision  been  made  for  maintaining  in 
practice  the  separation  delineated  on  paper.13  .  .  . 
The  legislative  department  is  everywhere  extend- 
ing the  sphere  of  its  activity,  and  drawing  all  power 
into  its  impetuous  vortex.  .  .  .  The  conclusion 
which  I  am  warranted  in  drawing  is,  that  a  mere 

12  Thorpe:  p.  1898. 
is  Federalist,  xlvii. 


THE  UNITED  STATES  7 

demarcation  on  parchment  of  the  constitutional 
limits  of  the  several  departments,  is  not  a  sufficient 
guard  against  those  encroachments  which  lead  to 
a  tyrannical  concentration  of  all  the  powers  of 
government  in  the  same  hands.14 

In  some  States  efforts  were  made  to  erect 
barriers  against  the  encroachments  of  the 
legislature.  In  New  York  the  Governor,  the 
Chancellor,  and  the  judges  of  the  supreme 
court  were  to  form  a  council  of  revision  which 
had  power  to  veto  acts  of  the  legislature.15 
The  Pennsylvania  constitution  of  1776  in- 
cluded a  provision  for  a  Council  of  Censors 
who  should  meet  in  1783  and  in  every  seventh 
year  thereafter.  This  council  was  to  exam- 
ine into  the  conduct  of  the  government  and 
had  power  "to  pass  public  censures,  to  order 
impeachments,  and  to  recommend  to  the  Leg- 
islature the  repealing  such  laws  as  appear  to 
them  to  have  been  enacted  contrary  to  the 
principles  of  the  constitution."10  The  same 
provision  was  copied  into  the  constitution  of 
Vermont  where  it  continued  in  use  down  to 
1869. 

i*  Federalist,  xlviii. 
is  Thorpe:  p.  2628. 
i«Ibid.,  p.  3091. 


8  JUDICIAL  TENURE  IN 

These  provisions  were  ineffective  and  con- 
tributed neither  to  check  the  legislature  nor 
to  elevate  the  judiciary.  In  his  ' i  Notes  on 
Virginia "  Jefferson  made  the  criticism  that 
all  powers  of  government  resulted  to  the 
legislative  body.  He  pointed  out  that : 

The  convention  which  passed  the  ordinance  of 
government  laid  its  foundation  on  this  basis,  that 
the  legislative,  executive,  and  judiciary  depart- 
ments should  be  separate  and  distinct,  so  that  no 
person  should  exercise  the  powers  of  more  than  one 
of  them  at  the  same  time.  But  no  barrier  was 
provided  between  the  several  powers.  The  ju- 
diciary and  executive  members  were  left  dependent 
on  the  legislative  for  their  subsistence  in  office,  and 
some  of  them  for  their  continuance  in  it.  If,  there- 
fore, the  legislature  assumes  executive  and  ju- 
diciary powers,  no  opposition  is  likely  to  be 
made.  .  .  .  They  have,  accordingly,  in  many  in- 
stances, decided  rights  which  should  have  been  left 
to  judicial  controversy;  and  the  direction  of  the 
executive  during  the  whole  time  of  their  session 
is  becoming  habitual  and  familiar.17 

The  Pennsylvania  Council  of  Censors  at  their 
meeting  in  1783  considered  the  constitution 
defective  in  vesting  all  legislative  power  in  a 
single  house  of  representatives,  "because  an 

IT  Works  (ed.  Ford),  viii,  p.  362. 


THE  UNITED  STATES  9 

uncontrolled  power  of  legislation  will  always 
enable  the  body  possessing  it  to  usurp  both 
the  judicial  and  the  executive  authority,  in 
which  case  no  remedy  would  remain  to  the 
people  but  by  a  revolution. "  At  the  same 
time  they  recommended  that  the  judges  be 
granted  a  tenure  during  good  behavior  be- 
cause, being  commissioned  for  seven  years, 
"if  the  assembly  should  pass  an  unconstitu- 
tional law,  and  the  judges  have  virtue  enough 
to  refuse  to  obey  it,  the  same  assembly  could 
instantly  remove  them.  "18 

The  extent  of  the  encroachments  by  the 
legislature  was  perhaps  most  widespread  in 
Vermont.19  The  judiciary  was  completely 
subordinated  to  the  legislature,  and  the  latter 
department  made  rules,  granted  new  trials, 
and  vacated  and  annulled  judgments.  The 
courts  refused  to  review  the  constitutionality 
of  legislative  enactments,  declaring  that  "a 
mode  of  procedure  pointed  out  by  statute 
cannot  be  turned  from  although  in  derogation 

is  Conventions  of  Pa.  (1776-1790),  p.  70. 

is  In  Pennsylvania  the  legislature  was  not  considered  to 
be  limited  in  the  same  degree  as  were  the  other  departments 
of  government.  Eesp.  v.  Buflington,  1  Dallas  61.  See  also 
Calder  v.  Bull,  3  Dallas  386,  and  Cooper  v.  Telfair,  4  Dallas 
13. 


10  JUDICIAL  TENURE  IN 

of  the  common  law.  Such  action  by  the  courts 
would  be  to  assume  an  arbitrary  power  not 
warranted  by  law."20 

But  it  could  not  be  expected  that  any  doc- 
trine of  this  sort  should  enjoy  very  long  ex- 
istence. Its  early  success  was  due  partly  to 
the  popularity  of  the  legislature  in  colonial 
times  and  partly  to  the  fact  that  in  most 
States  those  who  had  framed  the  constitu- 
tions became  the  legislators.  On  the  other 
hand,  the  case  for  the  American  revolution 
had  been  built  upon  the  idea  that  acts  con- 
trary to  natural  right  and  justice  were  null 
and  void,  and  in  the  famous  controversy  over 
the  Writs  of  Assistance,  James  Otis  had 
denied  the  right  of  Parliament  to  determine 
ultimately  the  validity  of  its  own  acts.21 

More  important  than  this  political  theory 
was  the  substantial  fact  that  under  legislative 
dominance  the  States  were  becoming  involved 
in  confusion  and  chaos.  Paper  money  legis- 

20  Paine  v.  Ely,  1  Chipman's  Keports  37.     "No  idea  was 
entertained    (in  Vermont)   that  an  act  of  legislature,  how- 
ever repugnant  to  the  constitution,  could  be  adjudged  void 
and  set  aside  by  the  judiciary,  which  was  considered  by  all 
a    subordinate    department    of    government."       Chipman: 
Memoir  of  Thomas  Chittenden,  p.  112. 

21  See  Haines :  Conflict  over  Judicial  Powers,  Ch.  ] . 


THE  UNITED  STATES  11 

lation  and  stay  laws  became  such  a  menace 
to  domestic  peace  and  prosperity  that  the 
respectable  element  began  to  consider  what 
curb  might  be  applied  to  the  legislature.22 

Ill 

In  the  reaction  against  legislative  omnipo- 
tence judicial  review  was  born.  As  early  as 
1780  the  supreme  court  of  New  Jersey  in  the 
case  of  Holmes  v.  Walton  had  set  aside  as 
unconstitutional  an  act  of  the  legislature 
which  provided  that  in  certain  classes  of 
cases  a  jury  might  consist  of  six  men.23 

22  Beard :  Supreme  Court  and  the  Constitution,  p.  75. 

23  Some    writers   have   claimed   the   Josiah   Philips    case 
which  arose  in  Virginia  in  1778  as  one  of  judicial  review. 
See  article  by  William  P.  Trent,  American  Historical  Re- 
view,  i,   pp.    444-454,   and    Haines:    American   Doctrine   of 
Judicial  Supremacy,  pp.  77-80.     But  in  the  Jefferson  MSS, 
in  the  Library  of  Congress  under  date  of  August  15,  1815, 
is  to  be  found  a  letter  from  Jefferson  to  William  Wirt  which 
proves  conclusively  that  in  the  case  of  Josiah  Philips  there 
arose  no  question  of  judicial  review.     In  speaking  of  the 
case  Jefferson  says:    "I  remember  the  case  and  took  my 
part  in  it.     Philips  was  a  mere  robber,  who  availing  him- 
self of  the  troubles  of  the  times,  collected  a  banditti,  retired 
to  the  Dismal  Swamp,  and  from  thence  sallied  forth,  plun- 
dering  and   maltreating   the    neighboring   inhabitants,    and 
covering  himself,  without  authority,  under  the  name  of  a 
British  subject.     Mr.  Henry,  then  Governor,  communicated 
the  case  to  me.    We  both  thought  the  best  proceeding  would 


12  JUDICIAL  TENURE  IN 

Several  protests  were  sent  in  to  the  legis- 
lature by  the  inhabitants  of  the  counties  in- 
terested in  the  act  adjudged  void,  but  gen- 
erally the  court  was  sustained.  The  follow- 
ing year  that  part  of  the  act  relating  to  a  six- 
man  jury  was  repealed  and  it  was  enacted 
that  "it  shall  be  lawful  for  either  of  the 
parties  to  such  suit  to  demand  a  jury  of 
twelve  men,  which  jury  the  justice  shall  be 
empowered  to  grant."24 

Although  this  decision  attracted  some  at- 
tention,25 the  gains  to  the  judicial  power  were 
not  great  because  of  the  incomplete  recogni- 
tion given  the  doctrine  of  judicial  review  by 
the  legislature.  The  manner  in  which  the 

be  by  bill  of  attainder,  unless  he  delivered  himself  up  for 
trial  within  a  given  time.  Philips  was  afterwards  taken; 
and  Mr.  Randolph  being  Attorney  General  and  apprehend- 
ing he  would  plead  that  he  was  a  British  subject,  taken  in 
arms,  in  support  of  his  lawful  sovereign,  and  as  prisoner  of 
war  entitled  to  the  protection  of  the  law  of  nations,  he 
thought  the  safest  proceeding  would  be  to  indict  him  at 
common  law  as  a  felon  and  robber.  Against  this,  I  believe, 
Philips  urged  the  same  plea;  but  was  overruled  and  found 
guilty." 

24  Austin  Scott :  American  Historical  Review,  iv,  p.  456. 

25  Gouverneur  Morris  in  1785  pointed  out  that  "a  law 
was   once  passed   in   New  Jersey,   which  the   judges   pro- 
nounced   unconstitutional,    and    therefore    void."      Sparks: 
Life  of  Morris,  iii,  p.  438. 


THE  UNITED  STATES  13 

repeal  was  enacted  must  be  considered  as  a 
compromise  which,  while  not  denying  the 
right  of  the  courts  to  pass  upon  the  consti- 
tutionality of  legislative  enactments,  left  to 
the  legislature  in  the  last  analysis  the  power 
to  define  by  statute  the  functions  of  each  de- 
partment of  government.  Nor  was  any  con- 
tribution to  the  judicial  power  secured  by 
the  obiter  dicta  of  the  judges  of  the  Virginia 
Court  of  Appeals  in  the  decision  of  Common- 
wealth v.  Caton  in  1782.  The  judges  were  of 
the  opinion  "that  the  court  had  power  to  de- 
clare any  resolution  or  act  of  the  legislature, 
or  either  branch  of  it,  to  be  unconstitutional 
and  void."26  But  since  the  case  did  not  call 
for  the  exercise  of  this  power  it  is  not  known 
how  these  views  were  received. 

The  next  case  to  receive  attention  was  that 
of  Rutgers  v.  Waddington  decided  in  the 
mayor's  court  in  New  York  City  in  1784.27 
Far  from  asserting  the  doctrine  of  judicial 
review  the  court  in  this  case  merely  laid  claim 
on  behalf  of  the  judiciary  to  a  judicial  dis- 

26  4  Call  5. 

27  The  action  was  one  of  trespass  brought  upon  a  statute 
of  March  17,  1783.     Plea  was  made  that  the  act  was  in 
contravention  of  the  law  of  nations  and  the  treaty  of  peace 
of  1783. 


14  JUDICIAL  TENURE  IN 

cretion  within  the  limits  of  Blackstone's 
tenth  rule  for  construing  statutes.  Closely 
following  Blackstone,  the  court  observed : 

The  supremacy  of  the  legislature  need  not  be 
called  into  question;  if  they  think  positively  to 
enact  a  law,  there  is  no  power  which  can  control 
them.  When  the  main  object  of  such  a  law  is 
clearly  expressed,  and  the  intention  is  manifest, 
the  judges  are  not  at  liberty,  although  it  appears 
to  them  to  be  unreasonable,  to  reject  it;  for  this 
were  to  set  the  judicial  above  the  legislative,  which 
would  be  subversive  of  all  government.  But  when 
a  law  is  expressed  in  general  words,  and  some 
collateral  matter  which  happens  to  arise  from  those 
general  words  is  unreasonable,  there  the  judges 
are  in  decency  to  conclude  that  the  consequences 
were  not  foreseen  by  the  legislature ;  and  therefore 
they  are  at  liberty  to  expound  the  statute  by  equity 
and  only  quoad  hoc  to  disregard  it.  When  the 
judicial  make  these  distinctions,  they  do  not  con- 
trol the  legislature;  they  endeavor  to  give  their 
intention  its  proper  effect.28 

Even  this  modest  assertion  by  the  judi- 
ciary of  the  right  to  interpret  a  statute  when 
not  plainly  expressed  was  considered  in  con- 
flict with  the  power  given  the  Council  of 
Revision  to  object  to  laws  deemed  improper 

28Coxe:  Judicial  Power,  p.  230. 


THE  UNITED  STATES  15 

by  them.  On  this  ground  the  decision  was 
seized  upon  by  the  "violent  Whigs, "  as  those 
of  the  Clinton  party  were  called,  and  an  effort 
was  made  to  use  it  as  political  capital.  A 
public  meeting  was  called  on  September  13, 
and  an  address  to  the  people  was  prepared. 
At  the  meeting  of  the  legislature  in  the  fol- 
lowing month  an  attempt  was  made  to  pass 
resolutions  of  censure  upon  the  mayor  and 
aldermen  and  to  recommend  to  the  Council 
of  Appointment  "that  at  their  next  appoint- 
ments they  appoint  such  persons  to  be  Mayor 
and  Eecorder  of  the  City  of  New  York  as  will 
govern  themselves  by  the  known  laws  of  the 
land."  The  resolutions  gave  rise  to  an  ex- 
tended debate  in  the  assembly  during  which 
the  records  were  brought  up  for  examination 
but  with  the  result  that  the  matter  was  dis- 
missed.29 

Because  of  the  complicated  situation  in- 
volved in  the  New  York  case  and  the  fact  that 
the  decision  was  used  to  further  partisan 
politics  it  is  difficult  to  ascertain  what  was 
the  real  attitude  of  the  people  toward  the  doc- 
trine of  judicial  review  even  in  the  limited 
scope  laid  down  by  the  mayor's  court.  But 

29  Dawson :  Pamphlet  of  Case  of  Rutgers  v.  Waddington. 


16  JUDICIAL  TENURE  IN 

two  years  later  we  find  popular  sympathy 
enlisted  in  support  of  the  judiciary  in  the 
exercise  of  judicial  review.  In  the  autumn 
of  1786  the  now  celebrated  case  of  Trevett  v. 
Weeden  came  before  the  superior  court  of 
Rhode  Island  for  decision.  During  the  pre- 
vious year  the  paper  money  party  had  gained 
control  of  the  state  government  and  pro- 
ceeded to  enter  upon  a  career  of  "rag 
money "  enactments  indicative  of  fraud,  ig- 
norance and  folly.  Many  merchants  refused 
to  accept  the  paper  money  as  legal  tender 
despite  the  fact  that  the  legislature  had  de- 
clared a  penalty  of  one  hundred  pounds  for 
such  refusal  and  denied  the  right  of  trial  by 
jury  in  such  cases.  One  of  these  merchants, 
John  Weeden,  was  sued  by  a  paper  money 
fanatic  by  the  name  of  Trevett  when  he  de- 
clined to  accept  bills  of  credit  as  legal  ten- 
der.30 

The  defendant  averred  that  the  court  could 
not  take  cognizance  of  the  case ;  that  the  act 
constituting  three  judges  of  the  supreme 
court  without  a  jury  a  special  court  for  the 
trial  of  such  cases  was  unconstitutional.  The 

3°  Coxe :  pp.  234-235.  Carey :  American  Museum,  v,  pp. 
36-38. 


THE  UNITED  STATES  17 

counsel  for  the  defense,  James  M.  Varnum, 
in  a  forceful  argument  to  the  court  asserted 
the  independence  of  the  judiciary.  "The 
legislature, "  he  said,  "have  the  uncontrol- 
lable power  of  making  laws  not  repugnant  to 
the  constitution.  The  judges  have  the  sole 
power  of  judging  those  laws  and  are  bound 
to  execute  them;  but  cannot  admit  any  act 
of  the  legislature  as  law  which  is  against  the 
constitution. ' m  In  giving  their  decision, 
however,  the  judges  seem  to  have  desired  to 
avoid  the  main  issue  by  declaring  "that  the 
information  was  not  cognizable  before  them." 
But  the  judgment  of  the  court  must  be  con- 
sidered as  having  rejected  the  statute  as 
void.32 

The  legislature,  mortified  and  chagrined, 
ordered  the  judges  before  them  to  explain 
their  action  and  three  of  them  appeared,  the 
chief  justice  being  prevented  by  illness  from 
attending.  After  the  judges  had  been  heard 
in  their  own  defense,  an  animated  discussion 
arose  among  the  members  of  the  assembly  as 
to  whether  they  were  satisfied  with  the  rea- 

31  Coxe:  p.  242.    Varnum:  Pamphlet  (in  New  York  Free 
Library). 

32  Coxe:  p.  245. 


18  JUDICIAL  TENURE  IN 

sons  given  by  the  judges  in  support  of  their 
decision,  but  the  opponents  of  the  judges  pre- 
vailed and  a  motion  was  made  to  dismiss 
them  from  office. 

In  the  meantime  a  petition  was  received 
from  the  judges  asking  a  hearing  by  counsel 
before  a  legal  and  proper  tribunal,  and  the 
assembly  agreed  to  hear  James  M.  Varnum 
in  their  defense.  Varnum  argued  that 
whether  the  judgment  of  the  court  was  right 
or  wrong,  the  judges  could  not  be  brought  to 
answer  for  it  except  by  due  course  of  law. 
He  pointed  out  that  their  tenure  wras  not 
during  the  pleasure  of  the  assembly  but  for 
a  period  of  one  year,  and  their  removal  could 
not  be  effected  during  that  time  except  upon 
conviction  in  open  court  of  some  crime,  neg- 
lect, or  abuse  of  trust. 

The  memorial  and  the  address  strongly 
impressed  the  legislature  and  they  decided 
to  ask  the  advice  of  the  attorney  general. 
Motion  was  made  to  inquire  if  the  assembly, 
agreeably  to  law  and  the  constitution,  could 
remove  or  suspend  from  office  the  judges  of 
the  supreme  judiciary  court,  without  previous 
charge,  due  process  of  law,  trial  and  convic- 
tion thereon.  The  opinion  of  Mr.  Channing, 


THE  UNITED  STATES  19 

the  attorney  general,  and  other  lawyers  be- 
ing unfavorable  to  such  action  by  the  assem- 
bly, the  judges  were  not  removed.  Their 
judgment  was  condemned  by  a  large  majority 
of  the  legislature  but  no  charge  of  criminality 
being  made,  the  matter  was  dismissed.  The 
judges  were  not,  however,  re-elected  at  the 
next  election.33 

In  North  Carolina  the  doctrine  of  judicial 
review  was  asserted  in  1787.  On  May  29,  as 
the  convention  to  amend  the  Articles  of  Con- 
federation was  assembling  in  Philadelphia, 
the  court  of  conference,  the  highest  tribunal 
in  North  Carolina,  handed  down  a  decision 
in  the  case  of  Bayard  v.  Singleton.34  The 
court  seems  to  have  made  every  effort  to 
avoid  a  conflict  with  the  legislature  but  in  the 
end  was  obliged  to  set  aside  as  invalid  a 
"quieting  act."35 

This  was  the  first  case  in  which  a  conflict 
arose  between  a  clause  in  a  written  consti- 
tution and  an  act  of  a  legislature.  The  judges 
in  the  case  were  denounced  as  usurpers  of 

as  Chandler:  Criminal  Trials,  ii,  p.  336. 

s*  Maryland  Gazette,  July  3,  1787. 

35  1  Martin  42.  The  act  in  question  was  designed  to 
secure  in  their  possession  all  persons  who  had  purchased 
lands  sold  by  the  commissioners  of  forfeited  estates. 


20  JUDICIAL  TENURE  IN 

power,  Richard  Dobbs  Spaight,  a  member  of 
the  federal  convention,  declaring  that  "the 
State  was  subject  to  three  individuals,  who 
united  in  their  own  persons  the  legislative 
and  judicial  power,  which  no  monarch  in  Eng- 
land enjoys.  .  .  ,"36  He  was  answered  by 
James  Iredell  who  insisted  that : 

An  act  inconsistent  with  the  constitution  was 
void;  and  that  the  judges,  consistently  with  their 
duties,  could  not  carry  it  into  effect.  The  con- 
stitution appears  to  me  to  be  a  fundamental  law, 
limiting  the  powers  of  the  legislature,  and  with 
which  every  exercise  of  those  powers  must,  neces- 
sarily, be  compared.  Without  an  express  consti- 
tution the  powers  of  the  legislature  would  un- 
doubtedly have  been  absolute,  and  any  act  passed 
not  inconsistent  with  natural  justice  (for  that  curb 
is  avowed  by  the  judges  even  in  England),  would 
have  been  binding  on  the  people.37 

As  a  result  of  the  exercise  of  the  doctrine 
of  judicial  review  the  courts  came  to  occupy 
a  far  more  independent  position  than  they 
had  hitherto  enjoyed.  They  now  had  a 
weapon  upon  which  they  could  rely,  enabling 
them  to  define  the  functions  to  be  ascribed  to 

3«Coxe:  p.  386. 

37  McRee :  Life  of  James  Iredell,  ii,  p.  172. 


THE  UNITED  STATES  21 

each  department  of  government.  Moreover, 
in  the  exercise  of  this  new-found  power  they 
had  gained  popular  support.38  Gouverneur 
Morris  in  1785  declared  that  ' l  such  power  in 
judges  is  dangerous ;  but  unless  it  somewhere 
exists,  the  time  spent  in  framing  a  bill  of 
rights  and  form  of  government  was  merely 
thrown  away."39  In  the  case  of  the  North 
Carolina  judges  "charges  were  brought 
against  them  in  the  legislature,  but  they  were 
eventually  sustained  by  public  opinion.  "40 
The  Ehode  Island  judges,  despite  the  positive 
assurances  that  the  next  election  would  see 
them  replaced  by  others  more  favorable  to 
the  party  in  control  of  the  legislature,  stood 
firm  against  the  paper  money  enactments. 
The  court  was  moved  in  one  case  by  way  of 
experiment  to  cause  the  bills  to  be  counted, 

ss  Kespecting  conditions  in  New  Hampshire  in  1786,  a 
letter  of  William  Plumer  declares:  "The  aspect  of  public 
affairs  in  this  state  is  gloomy.  Money  is  scarce;  business  is 
dull,  and  our  feeble  government  is  unhinged.  Yet,  even  in 
these  degenerate  days,  our  courts  of  law  are  firm,  and  dare 
to  be  honest.  If  our  elective  government  is  to  be  long 
supported  it  will  owe  its  existence  merely  to  the  wisdom 
and  independence  of  the  courts. ' '  Plumer :  Life  of  William 
Plumer,  p.  166. 

39  Sparks :  Life  of  Morris,  iii,  p.  438. 

*oCoxe:  p.  252. 


22  JUDICIAL  TENURE  IN 

and  to  direct  the  clerk  to  record  the  tender. 
After  due  consideration  of  this  motion,  the 
court  determined  that  they  had  nothing  to  do 
with  paper  bills;  and  the  chief  justice  took 
the  handkerchief  containing  them  from  the 
table  and  returned  it  to  the  owner,  saying  to 
him:  "The  court  have  determined  that  we 
have  nothing  to  do  with  your  money. ' m 

IV 

The  federal  convention  was  fully  cognizant 
of  the  need  for  the  establishment  of  a  national 
judiciary  which  should  be  clothed  with  such 
power  as  would  enable  it  to  maintain  an  in- 
dependent position  as  one  of  the  great  de- 
partments of  government.  Its  members  were 
ready  to  define  sharply  the  province  of  each 
department  in  the  new  government  and  to 
provide  such  checks  and  balances  as  would 
prevent  such  encroachments  of  the  legisla- 
ture as  prevailed  in  the  states.  Eandolph  in 
presenting  his  ninth  resolution  on  May  29, 
1787,  remarked  that i '  our  chief  danger  arises 
from  the  democratic  parts  of  our  constitu- 
tions. It  is  a  maxim  which  I  hold  incontro- 
vertible that  the  powers  of  government  ex- 

41  Virginia  Independent  Chronicle,  May  9,  1787. 


THE  UNITED  STATES  23 

ercised  by  the  people  swallow  up  the  other 
branches.  None  of  the  constitutions  have 
provided  sufficient  checks  against  the  democ- 
racy/742 

The  plan  suggested  by  Randolph  called  for 
the  establishment  of  one  or  more  supreme 
tribunals  and  of  inferior  tribunals  to  be 
chosen  by  the  national  legislature.  The 
judges  were  to  hold  their  commissions  during 
good  behavior  and  were  to  receive  a  fixed 
compensation  which  should  be  neither  in- 
creased nor  diminished  during  their  term  of 
service.43  The  New  Jersey  or  "  small  state  " 
plan  submitted  on  June  15  differed  from  that 
of  Randolph  in  that  but  one  supreme  tribunal 
to  be  chosen  by  the  executive  was  provided.44 

The  separation  of  the  judicial  from  the 
legislative  power  was  equally  desired  with 
the  independence  of  the  courts.  Many  of  the 
members  of  the  convention  wished  to  join  the 
judges  in  the  making  of  laws  and  to  that  end 
proposed  to  associate  them  with  the  execu- 
tive in  a  Council  of  Revision  to  pass  upon 
acts  of  the  national  legislature.  The  friends 

42  Farrand :  Records  of  the  Federal  Convention,  i,  p.  26. 

43  Ibid.,  p.  21. 

4*  Ibid.,  ii,  p.  74. 


24  JUDICIAL  TENURE  IN 

of  this  proposition  urged  that  it  would  en- 
able the  judiciary  to  defend  itself  against  the 
encroachments  of  the  legislature,  would  in- 
spire the  executive  with  additional  confidence 
and  firmness,  and  would  be  useful  to  the  legis- 
lature by  the  valuable  assistance  it  would 
give  in  preserving  a  consistency  and  techni- 
cal propriety  in  all  laws.45 

But  the  provision  for  a  Council  of  Eevision 
was  rejected  because  its  opponents  thought 
that  the  power  of  making  ought  to  be  kept 
separate  from  that  of  expounding  the  laws. 
Mercer  declared  that  "it  is  an  axiom  that  the 
judiciary  ought  to  be  separate  from  the  legis- 
lative, but  equally  so  that  it  ought  to  be  in- 
dependent of  that  department."46  Charles 
Pinckney  thought  that  the  interference  of  the 
judges  in  legislative  business  would  involve 
them  in  parties  and  give  a  previous  tincture 
to  their  opinions,  while  Eutledge  insisted  that 
' '  the  judges  ought  never  to  give  their  opinion 
on  a  law  until  it  comes  before  them. ' m 

The  independence  of  the  judicial  depart- 
ment against  encroachments  by  the  legisla- 

45Farrand:  ii,  p.  74. 

46  Ibid.,  ii,  p.  298. 

47  Ibid.,  ii,  p.  80. 


THE  UNITED  STATES  25 

ture  was  felt  to  be  amply  protected  by  the 
power  of  judicial  review  vested  in  the  courts. 
That  the  f  ramers  of  the  Constitution  intended 
that  the  courts  of  the  United  States  should 
have  the  power  to  review  legislative  enact- 
ments setting  aside  such  as  might  be  in  con- 
flict with  the  Constitution  has  been  substan- 
tially proved  by  recent  investigations.48 

The  members  of  the  convention  were  fully 
informed  as  to  the  success  of  the  doctrine  of 
judicial  review  in  the  various  state  courts 
where  it  had  been  set  forth.  On  June  4, 
Gerry  pointed  out  that  "in  some  states  the 
judges  had  actually  set  aside  laws  as  being 
against  the  constitution.  This  was  done,  too, 
with  general  approbation. '  '49  At  this  time 
he  must  have  been  in  possession  of  informa- 
tion regarding  all  the  cases  mentioned  above. 
At  the  same  time  he  doubted  whether  in  the 
formation  of  a  Council  of  Revision  "the 
judiciary  ought  to  form  a  part  of  it,  as  they 
will  have  a  sufficient  check  against  encroach- 
ments on  their  own  department  by  their 
exposition  of  the  laws  which  involves  a  power 

48  Beard:    Supreme  Court  and  the  Constitution.     E.   S. 
Corwin:  Michigan  Law  Review,  ix,  pp.  102,  283. 

49  Farrand :  i,  p.  97. 


26  JUDICIAL  TENURE  IN 

of  deciding  on  their  constitutionality.  "50  In 
this  view  he  was  supported  by  Luther  Martin, 
who  added  that  "as  to  the  constitutionality 
of  laws,  that  point  will  come  before  the  judges 
in  their  proper  official  character.  In  this 
character  they  have  a  negative  on  the  laws."51 
Those  who  desired  the  establishment  of 
the  Council  of  Revision  were  entirely  in  ac- 
cord with  its  opponents  in  the  view  that  the 
courts  might  pass  upon  the  constitutionality 
of  acts  of  the  legislature.  But  Wilson  held 
that  this  power  of  the  judges  did  not  go  far 
enough.  "Laws/'  he  said,  "may  be  unjust, 
may  be  unwise,  may  be  dangerous,  may  be 
destructive,  and  yet  not  be  so  unconstitu- 
tional as  to  justify  the  judges  in  refusing  to 
give  them  effect. '  '52  Nevertheless  despite  the 
argument  of  Madison  that  the  proposition 
would  not  be  "any  violation  of  the  maxim 
which  requires  that  the  great  departments  of 
power  be  kept  separate  and  distinct, "  the 
proposed  Council  of  Revision  was  defeated 
and  the  revision  of  unconstitutional  legisla- 
tion left  to  the  discretion  of  the  judiciary.53 

so  Farrand:  i,  p.  97. 
si  Ibid.,  ii,  p.  26. 

52  Ibid.,  ii,  p.  73. 

53  Ibid.,  ii,  p.  76. 


THE  UNITED  STATES  27 

But  while  the  intention  of  the  convention 
with  respect  to  the  judicial  review  of  acts  of 
Congress  was  not  followed  by  specific  consti- 
tutional provisions,  because  such  power  was 
thought  to  flow  from  fundamental  principles, 
the  same  power  with  respect  to  State  legis- 
lation which  might  conflict  with  the  Consti- 
tution was  guaranteed  by  a  particular  article 
in  the  new  draft  of  government.  In  the  origi- 
nal plan  proposed  by  Kandolph  was  an  article 
giving  the  national  legislature  power  "to 
negative  all  laws  passed  by  the  several  states 
contravening  the  articles  of  union.  "54  This 
provision  was  accepted  until  it  was  chal- 
lenged on  June  20  by  John  Lansing  who  said : 
"It  is  proposed  that  the  general  legislature 
shall  have  a  negative  on  laws  of  the  states. 
Is  it  conceivable  that  there  will  be  leisure  for 
such  a  task!  There  will,  on  the  most  mod- 
erate calculation,  be  as  many  acts  sent  up 
from  the  states  as  there  are  days  in  the  year. 
Will  the  members  of  the  general  legislature 
be  competent  judges  f  Will  a  gentleman  from 
Georgia  be  a  judge  of  the  expediency  of  a 
law  which  is  to  operate  in  New  Hampshire? 

54Farrand:  i,  p.  21. 


28  JUDICIAL  TENURE  IN 

Such  a  negative  would  be  more  injurious  than 

that  of  Great  Britain  heretofore  was."55 

The  question  of  expediency  being  raised, 
a  host  of  objections  to  the  proposition  were 
brought  forward.  Sherman  "thought  it  un- 
necessary, as  the  courts  would  not  consider 
as  valid  any  law  contravening  the  authority 
of  the  union,  and  which  the  legislature  would 
wish  to  be  negatived. ' >56  Gouverneur  Morris 
"was  more  and  more  opposed  to  the  nega- 
tive, ' '  maintaining  that  i  i  a  law  that  ought  to 
be  negatived  would  be  set  aside  in  the  judi- 
ciary department.  "57  But  Madison  warned 
them  that  "confidence  cannot  be  put  in  the 
State  tribunals  as  guardians  of  the  national 
authority  and  interests."58  A  happy  solution 
of  the  difficulty  was  reached  when  Luther 
Martin  proposed  "that  the  legislative  acts  of 
the  United  States  .  .  .  shall  be  the  supreme 
law  of  the  respective  States  .  .  .  and  that 
the  judiciaries  of  the  several  States  shall  be 
bound  thereby  in  their  decisions,  anything  in 

ss  Farrand :  i,  p.  337. 
se  Ibid.,  ii,  p.  27. 

57  Ibid.,  ii,  p.  28. 

58  ibid.,  ii.  p.  27. 


THE  UNITED  STATES  29 

the  respective  laws  of  the  individual  States 
to  the  contrary  notwithstanding."59 

That  the  independence  of  the  judges  might 
be  secured,  the  superiority  of  commissions 
during  good  behavior  was  never  doubted  in 
the  course  of  the  convention.  Towards  the 
close  of  the  session,  on  August  27, 

Dickinson  moved  an  amendment  to  provide  that 
judges  might  be  removed  by  the  Executive  on 
application  by  the  Senate  and  the  House  of  Repre- 
sentatives. Gouverneur  Morris  thought  it  a  con- 
tradiction in  terms  to  say  that  the  judges  should 
hold  office  during  good  behavior  and  yet  be  remov- 
able without  trial.  Besides  it  was  fundamentally 
wrong  to  subject  judges  to  so  arbitrary  an  au- 
thority. Mr.  Sherman  saw  no  contradiction  or 
impropriety  if  this  were  made  a  part  of  the  con- 
stitutional regulation  of  the  judiciary  establish- 
ment. He  observed  a  like  provision  was  contained 
in  the  British  statutes. 

Mr.  Rutledge :  If  the  Supreme  Court  is  to  judge 
between  the  United  States  and  particular  states, 
this  alone  is  an  insuperable  objection  to  the  motion. 

Mr.  Wilson  considered  such  a  provision  in  the 
British  constitution  as  less  dangerous  than  here, 
the  House  of  Lords  and  the  House  of  Commons 
being  less  likely  to  concur  on  the  same  occasions. 

59Farrand:  ii,  p.  29. 


30  JUDICIAL  TENURE  IN 

Chief  Justice  Holt,  he  remarked,  had  successively 
offended  by  his  independent  conduct,  both  Houses 
of  Parliament.  Had  this  happened  at  the  same 
time  he  would  have  been  ousted.  The  judges  would 
be  in  a  bad  situation  if  made  to  depend  on  every 
gust  of  faction  which  might  prevail  in  the  two 
branches  of  our  government.  Mr.  Randolph  op- 
posed the  motion  as  weakening  too  much  the 
independence  of  the  judges.60 

On  Dickinson's  motion  being  put,  only  one 
State  voted  in  the  affirmative.  Hamilton  ad- 
mits that  the  want  of  a  provision  for  the  re- 
moval of  federal  judges  on  address  was  the 
subject  of  complaint.61  But  the  records  show 
that  the  preponderant  opinion  of  the  mem- 
bers of  the  convention  was  that  such  a  pro- 
vision would  be  inconsistent  with  the  inde- 
pendence they  deemed  necessary  to  the  judi- 
cial department. 

To  such  lengths  was  the  demand  for  an 
independent  judiciary  carried  that  Madison 
objected  to  permitting  an  increase  in  salaries 
of  the  judges  during  their  term  of  service  on 
the  ground  that  "whenever  an  increase  is 
wished  by  the  judges,  or  may  be  in  agitation 

ooFarrand:  ii,  pp.  423,  428. 
6i  Federalist,  Ixxix. 


THE  UNITED  STATES  31 

by  the  legislature,  an  undue  complaisance  in 
the  former  may  be  felt  towards  the  latter. '  '62 
But  this  objection  was  overruled  because  it 
was  equally  clear  that  if  there  was  no  power 
to  increase  their  pay  according  to  the  increase 
of  business  during  the  life  of  the  judges,  it 
might  happen  that  there  would  be  such  an 
accumulation  of  business  as  would  reduce  the 
pay  to  a  most  trivial  consideration.63 

Debate  on  Kandolph's  plan  for  a  federal 
judiciary  centered  on  that  part  of  the  ninth 
resolution  vesting  the  choice  of  judges  in  the 
national  legislature.  The  opposition  in  com- 
mittee of  the  whole  was  led  by  James  Wilson 
who  advocated  an  appointment  by  the  execu- 
tive. To  this  Kutledge  refused  to  assent, 
claiming  that  such  a  method  savored  too 
much  of  monarchy.  Uncertainty  as  to  the 
real  thoughts  of  the  convention  on  this  point 
was  only  too  evident  and  Madison,  feeling 
the  need  for  more  mature  reflection,  threw 
out  the  suggestion  that  this  power  be  vested 
in  the  Senate  and  moved  a  postponement.64 

When  the  subject  was  again  discussed  in 

eaFarrand:  ii,  pp.  44-45. 

cs  Elliot:  Debates,  iii,  p.  517. 

o4Farrand:  i,  p.  320-121. 


32  JUDICIAL  TENURE  IN 

committee,  Charles  Pinckney  and  Roger 
Sherman  supported  Rutledge  in  advocating 
an  appointment  by  the  national  legislature. 
Madison  objected  that  many  of  the  members 
would  be  incompetent  judges  of  the  qualifica- 
tions necessary  for  judicial  office  and  pro- 
posed that  "the  appointment  should  be  made 
by  the  Senate  which,  as  a  less  numerous  and 
more  select  body,  would  be  more  competent 
judges,  but  which  was  sufficiently  numerous 
to  justify  confidence  in  them."65 

The  matter  was  resumed  on  July  18,  when 
Mr.  Gorham,  with  the  provisions  of  the  con- 
stitution of  Massachusetts  in  mind,  rose  in 
convention  and  proposed  that  the  judges  be 
appointed  by  the  executive,  by  and  with  the 
advice  and  consent  of  the  Senate.  The  de- 
bate was  somewhat  extended  and  showed  a 
marked  preference  on  the  part  of  the  leaders 
for  an  appointment  by  the  Senate  alone. 
Yet  it  was  equally  evident  that  this  prefer- 
ence was  dictated  by  the  fact  that  the  Senate 
was  to  be  small  in  numbers.  Gouverneur 
Morris  and  James  Wilson  continued  their 
opposition  to  an  appointment  by  the  second 
branch  and  it  was  not  until  quite  late  in  the 

65Farrand:  i,  p.  232. 


THE  UNITED  STATES  33 

session  that  the  convention  agreed  to  admit 
the  executive  as  a  participant  in  the  exercise 
of  this  power  and  the  present  provision  was 
drawn  up.66  Some  like  Madison  asserted  that 
the  union  of  the  legislative  and  executive  de- 
partments in  the  appointing  power  was  ef- 
fected only  in  order  that  the  President  might 
be  guided  by  the  advice  of  the  Senate.67 
Others  saw  in  the  combination  a  restraint 
upon  the  executive  and  a  further  means  of 
preventing  him  from  becoming  absolute.68 

Thus  far  could  the  convention  proceed  with- 
out serious  dissension  in  the  establishment  of 
a  national  judiciary.  But  they  had  secured 
merely  the  independence  of  the  judges  and  a 
distinction  between  judicial  and  legislative 
functions.  Wilson  noted  on  the  margin  of  his 
committee  report  that  "the  judicial  should 
be  commensurate  to  the  legislative  and  ex- 
ecutive authority. '  '69  To  erect  the  judiciary 
as  a  co-ordinate  department  of  government 
necessitated  the  consideration  of  numerous 
clauses  respecting  jurisdiction  which  are  be- 
yond the  scope  of  this  inquiry. 

ee  Farrand :  ii,  p.  589. 

67  Ibid.,  iii,  p.  357. 

68  Ibid.,  iii,  p.  358. 

69  Ibid.,  ii,  p.  237. 


34  JUDICIAL  TENURE  IN 

In  one  feature  of  their  plan,  however,  the 
friends  of  a  federal  judiciary  were  defeated, 
and  from  this  has  sprung  the  claim  of  Con- 
gress to  control  within  the  judicial  power. 
This  was  the  failure  to  accept  that  part  of 
the  ninth  resolution  providing  for  the  estab- 
lishment of  inferior  courts. 

Led  by  Rutledge,  the  advocates  of  States' 
rights  made  a  vigorous  assault  from  the  first 
upon  the  proposition  to  create  inferior  courts. 
Rutledge  argued  that: 

The  State  tribunals  might  and  ought  to  be  left 
in  all  cases  to  decide  in  the  first  instance,  the  right 
of  appeal  to  the  supreme  national  tribunal  being 
sufficient  to  secure  the  national  rights  and  uni- 
formity of  judgments.  He  considered  that  it  was 
making  unnecessary  encroachments  on  the  juris- 
diction of  the  States,  and  creating  unnecessary 
obstacles  to  their  adoption  of  the  system.70 

He  was  supported  by  Sherman  who  dwelt 
upon  the  expensiveness  of  having  a  new  set 
of  courts  when  the  existing  State  courts  would 
answer  the  same  purpose  and  a  motion  to 
strike  out  "inferior  tribunals "  passed  by  a 
vote  of  five  to  four. 

James  Wilson  and  Madison  at  once  pro- 

70  Farrand:  i,  p.  224. 


THE  UNITED  STATES  35 

posed  "that  the  national  legislature  be  em- 
powered to  institute  inferior  tribunals, "  ob- 
serving that  there  was  a  difference  between 
establishing  such  tribunals  absolutely  and 
leaving  their  establishment  to  the  discretion 
of  the  legislature.  But  Pierce  Butler  was 
strenuous  in  his  opposition  declaring: 

The  people  will  not  bear  such  innovations.  The 
States,  he  said,  will  revolt  at  such  encroachments. 
Supposing  such  establishment  to  be  useful  we  must 
not  venture  on  it.  We  must  follow  the  example 
of  Solon  who  gave  the  Athenians  not  the  best 
government  he  could  devise  but  the  best  they  would 
receive.71 

Luther  Martin  was  of  the  same  opinion, 
arguing  that  the  inferior  courts  would  create 
jealousies  and  oppositions  in  the  State  tri- 
bunals, with  the  jurisdiction  of  which  they 
would  interfere.72  Gorham  pointed  out,  how- 
ever, that  there  were  in  the  States  already 
federal  courts  with  jurisdiction  for  the  trial 
of  piracies  committed  on  the  high  seas  and 
that  no  complaints  had  been  made  either  by 
the  States  or  the  courts  of  the  States.  Sher- 
man suggested  that  the  power  be  given  the 

TiFarrand:  i,  p.  325. 
•  2  Ibid.,  ii,  p.  46. 


36  JUDICIAL  TENURE  IN 

legislature  to  establish  inferior  courts  but 
thought  that  the  State  tribunals  should  be 
made  use  of  whenever  it  could  be  done  with 
safety  to  the  general  interest  and  the  ques- 
tion was  thereupon  agreed  to  nem.  con. 

The  provision  as  reported  by  the  committee 
of  detail  read  "such  inferior  courts  as  the 
Congress  may  from  time  to  time,  when  neces- 
sary, ordain  and  establish."  Again  the 
friends  of  States'  rights  protested  and  the 
clause  "when  necessary"  was  omitted,  leav- 
ing the  creation  of  inferior  courts  entirely  at 
the  discretion  of  the  national  legislature.73 


In  the  opinion  of  the  writers  of  the  Fed- 
eralist the  provisions  for  the  establishment 
of  a  federal  judiciary  merited  the  greatest 
praise.  Hamilton  considered  the  "judiciary 
beyond  comparison  the  weakest  of  the  three 
departments  of  power"  and  that  "liberty 
could  have  nothing  to  fear  from  the  judiciary 
alone,  but  would  have  everything  to  fear  from 
its  union  with  either  of  the  other  depart- 
ments." He  therefore  thought  the  tenure 
during  good  behavior  and  the  fixed  compen- 

"Farrand:  ii,  p.  172. 


THE  UNITED  STATES  37 

sation  guaranteed  the  judges  to  be  necessary 
in  order  to  guard  the  judiciary  against  the 
encroachments  and  oppressions  of  the  legis- 
lative body.  The  doctrine  of  judicial  review 
he  maintains  as  a  logical  inference  from  the 
very  structure  of  the  Constitution.  He  points 
out: 

There  is  no  position  that  depends  upon  clearer 
principles,  than  that  every  act  of  a  delegated  au- 
thority, contrary  to  the  tenor  of  the  commission 
under  which  it  is  exercised,  is  void.  No  legislative 
act,  therefore,  contrary  to  the  Constitution,  can  be 
valid. 

If  it  be  said  that  the  legislative  body  are  them- 
selves the  constitutional  judges  of  their  own  powers, 
and  that  the  construction  they  put  upon  them  is 
conclusive  upon  the  other  departments,  it  may  be 
answered  that  this  cannot  be  the  natural  presump- 
tion, where  it  is  not  to  be  collected  from  any  par- 
ticular provisions  in  the  Constitution.  It  is  not 
otherwise  to  be  supposed  that  the  Constitution 
could  intend  to  enable  the  representatives  of  the 
people  to  substitute  their  will  to  that  of  their 
constituents.  It  is  far  more  rational  to  suppose 
that  the  courts  were  designed  to  be  an  intermediate 
body  between  the  people  and  the  legislature,  in 
order,  among  other  things,  to  keep  the  latter  within 
the  limits  assigned  to  their  authority. 


38  JUDICIAL  TENURE  IN 

Nor  does  this  conclusion  by  any  means  suppose 
a  superiority  of  the  judicial  to  the  legislative 
power.  It  only  supposes  that  the  power  of  the 
people  is  superior  to  both ;  and  that  where  the  will 
of  the  legislature,  declared  in  its  statutes,  stands 
in  opposition  to  that  of  the  people,  declared  in  their 
Constitution,  the  judges  ought  to  be  governed  by 
the  latter  rather  than  the  former.  They  ought  to 
regulate  their  decisions  by  the  fundamental  laws, 
rather  than  by  those  which  are  not  fundamental.74 

The  distinction  between  legislative  and 
judicial  functions  received  confirmation  at  the 
very  outset  of  the  new  government  in  the 
debate  which  took  place  in  the  first  Congress 
on  the  propriety  of  vesting  a  power  of  re- 
moval in  the  hands  of  the  President.  There 
Madison  claimed  that  the  meaning  of  the 
Constitution  might  as  well  be  ascertained  by 
the  legislative  as  by  the  judicial  authority.75 
But  this  view  was  not  accepted  by  Congress, 
the  predominant  opinion  being  expressed  by 
Gerry  when  he  declared : 

The  judges  are  the  expositors  of  the  Constitution 
and  the  acts  of  Congress.  Our  exposition,  there- 
fore, would  be  subject  to  their  revisal.  The  ju- 
diciary may  disagree  with  us  and  undo  what  all 

74  Federalist,  Ixxviii. 

75  Elliot:  iv,  pp.  382-383,  399. 


THE  UNITED  STATES  39 

our  efforts  have  labored  to  accomplish.  A  law  is 
a  nullity  unless  it  can  be  carried  into  execution: 
in  this  case  our  law  will  be  suspended.  Hence  all 
construction  .of  the  meaning  of  the  Constitution  is 
dangerous  or  unnatural,  and  therefore  ought  to  be 
avoided.  This  is  our  doctrine,  that  no  power  of 
this  kind  ought  to  be  exercised  by  the  legislature.76 

The  federal  courts  were  not  long  in  assert- 
ing their  powers  under  the  new  government, 
becoming  involved  in  a  controversy  with  the 
legislature  in  1792.  On  March  23  of  that 
year,  Congress  passed  an  act  "to  provide  for 
the  settlement  of  the  claims  of  widows  and 
orphans  barred  by  the  limitations  heretofore 
established,  and  to  regulate  the  claims  to 
invalid  pensions. "  By  this  act  the  circuit 
courts  were  bidden  to  receive  and  sit  in  judg- 
ment upon  pension  applications.  Their  de- 
cisions were  to  be  referred  to  the  secretary  of 
war  and  might  be  subjected  to  revision  by  the 
legislature.77 

The  judges  in  a  very  respectful  letter  to 
the  President  protested  that  the  duties  as- 
signed them  were  not  judicial  and  that,  while 
it  was  their  duty  to  receive  with  all  possible 

76  Elliot:  iv,  p.  403. 

"  U.  8.  Statutes  at  Large,  i,  pp.  243-245. 


40  JUDICIAL  TENURE  IN 

respect  every  act  of  the  legislature,  they  could 
not  execute  this  act.78  The  circuit  judges  for 
the  New  York  district  agreed  to  carry  out  the 
wishes  of  Congress  in  the  capacity  of  com- 
missioners, and  wrote  the  President  to  this 
effect.79  The  judges  for  the  North  Carolina 
district  agreed  to  adjudicate  the  claims  in  a 
similar  manner,  provided  such  procedure 
were  constitutional.80 

The  circuit  court  for  the  Pennsylvania  dis- 
trict consisting  of  Justices  Wilson,  Blair,  and 
Peters  were  much  more  resolute  in  refusing 
to  decide  the  pension  claims.  They  made  no 
protest  until  the  question  was  raised  before 
them  by  the  presentation  of  a  claim.  On 
April  11,  1792,  William  Hayburn  presented 
a  petition  to  the  judges  asking  to  be  placed 
upon  the  pension  list.  After  due  considera- 
tion the  court  refused  to  proceed  in  the  mat- 
ter and  gave  it  no  further  attention.  Hay- 
burn  then  sent  a  memorial  to  Congress  stat- 
ing that  the  circuit  court  had  refused  to  take 
cognizance  of  his  case  and  begging  them  for 

78  American  State  Papers,  Misc.,  i,  p.  52. 

79  Ibid.,  p.  49. 
so  Ibid.,  p.  52. 


THE  UNITED  STATES  41 

relief.81  The  judges  thereupon  sent  a  com- 
munication to  the  President  objecting  that 
the  business  was  not  of  a  judicial  nature  and 
pointing  out  that  since  the  act  subjected  their 
decision  to  a  revision  by  the  legislature  and 
by  the  secretary  of  war  it  was  radically  in- 
consistent with  the  independence  of  the  judi- 
cial power  which  is  vested  in  the  courts. 
They  declared  in  closing:  " These,  sir,  are  the 
reasons  for  our  conduct.  Be  assured,  that, 
though  it  became  necessary,  it  was  far  from 
being  pleasant.  To  be  obliged  to  act  con- 
trary either  to  obvious  directions  of  Con- 
gress, or  to  a  constitutional  principle,  in  our 
judgment  equally  obvious,  excited  feelings  in 
us  which  we  hope  never  to  experience 
again. ' * 

The  novelty  of  the  decision  of  the  circuit 
court  is  said  to  have  aroused  much  discussion 
and  no  little  excitement.  Some  of  the  radi- 
cals advocated  measures  against  the  judges 
though  no  motion  was  made  in  Congress, 
towards  their  enactment.83  Hayburn  peti- 
tioned the  House  of  Representatives  com- 

81  Annals,  2d  Cong.,  pp.  556-557. 

82  American  State  Papers,  Misc.,  i,  p.  51. 

83  Infra,  p.  108. 


42  JUDICIAL  TENURE  IN 

plaining  against  the  action  of  the  court  and 
begging  them  to  take  cognizance  of  his  case.84 
A  writ  of  mandamus  was  then  sought  from 
the  supreme  court  to  compel  the  inferior 
court  to  comply  with  the  act  of  Congress. 
This  the  court  held  over  for  advisement  until 
the  next  term,  but  no  decision  was  rendered 
as  the  legislature  in  the  meantime  provided 
in  another  way  for  the  relief  of  the  peti- 
tioners.85 

This  action  of  Congress  marks  the  first 
acceptance  of  an  adjudication  by  the  courts 
upon  the  validity  of  a  legislative  enactment. 
The  refusal  of  the  judges  to  proceed  upon  the 
petition  of  Hayburn  is  said  to  have  produced 
a  variety  of  opinions  on  the  part  of  members 
of  Congress  with  respect  to  the  measures  to 
be  taken  on  the  occasion.  Mr.  Murray  urged 
the  necessity  of  passing  a  law  to  point  out 
some  regular  mode  in  which  the  judges  of 
the  courts  of  the  United  States  should  give 
official  notice  of  their  refusal  to  act  under  any 
law  of  Congress  on  the  ground  of  unconstitu- 
tionally, but  this  he  did  not  put  in  the  form 

s*  Annals,  2d  Cong.,  p.  556. 

ss  Hayburn 's  Case,  2  Dallas  409. 


THE  UNITED  STATES  43 

of  a  motion.86  The  recognition  by  Congress 
of  the  decision  of  the  circuit  court  and  the 
subsequent  repeal  of  the  act  of  1792  gave  a 
fortunate  settlement  to  the  dispute.  The 
next  year  the  supreme  court  decided  that  the 
judges  who  refused  to  adjudicate  under  the 
act  of  1792  could  not  legally  do  so  in  the 
capacity  of  commissioners.87 

The  judges  took  further  steps  in  1793  to 
strengthen  their  position  and  to  assert  their 
independence  of  the  other  branches  of  gov- 
ernment. During  the  controversy  with  M. 
Genet,  the  French  minister,  as  to  his  right 
to  refit  a  captured  English  merchantman  as 
a  privateer  at  an  American  port,  and  then 
send  her  out  for  a  cruise,  the  President  asked 
the  justices  a  series  of  questions  compre- 
hending all  the  subjects  of  difference  as  to 
the  proper  exposition  of  the  provisions  of 
our  treaties  with  France  under  which  her 
minister  made  claim.  They  replied  that  they 
deemed  it  improper  to  enter  the  field  of 
politics  by  declaring  their  opinions  on  ques- 
tions not  growing  out  of  some  case  actually 
before  them.  No  further  request  of  this  kind 

86  Annals,  2d  Cong.,  i,  p.  557. 

87  U.  S.  v.  Yale  Todd,  13  Howard  52  (note). 


44  JUDICIAL  TENURE  IN 

has  since  been  made  by  any  of  the  political 
departments  to  a  court  of  the  United  States, 
except  such  as  have  been  addressed  to  the 
court  of  claims.88 

At  the  same  time  the  progress  of  the  ju- 
diciary in  maintaining  their  power  does  not 
seem  to  have  been  impressive.  On  August  5, 
1792,  Edmund  Eandolph  wrote  "Washington: 

It  is  much  to  be  regretted  that  the  judiciary  in 
spite  of  their  apparent  firmness  in  annulling  the 
pension  law,  are  not,  what  sometime  hence  they 
will  be,  a  resource  against  the  infractions  of  the 
Constitution  on  the  one  hand,  and  a  steady  asser- 
tion of  federal  rights  on  the  other.  So  crude  is  our 
judiciary  system,  so  jealous  are  our  State  judges 
of  their  authority,  so  ambiguous  is  the  language 
of  the  Constitution  that  the  most  probable  quarter 
from  which  an  alarming  discontent  may  proceed 
is  the  rivalship  of  these  two  orders  of  judges.89 

John  Jay  resigned  from  the  supreme  court 
after  a  few  years  of  service  as  chief  justice 
feeling  "perfectly  convinced  that  under  a 
system  so  defective  it  would  not  obtain  the 
energy,  weight,  and  dignity  which  are  essen- 
tial to  its  affording  due  support  to  the  na- 

88  Baldwin :  The  American  Judiciary,  p.  33. 

89  Sparks :  Life  and  Writings  of  Washington,  x,  p.  513. 


THE  UNITED  STATES  45 

tional  government,  nor  acquire  the  public 
confidence  and  respect  which,  as  the  last  re- 
sort of  the  justice  of  the  nation,  it  should 
possess."90  While  these  opinions  are  from 
men  who  had  expected  a  great  deal  from  the 
federal  judiciary,  it  is  apparent  that  since 
down  to  the  decision  in  Marbury  v.  Madison 
in  1803  only  six  cases  had  come  before  the 
supreme  court  involving  questions  of  consti- 
tutional law,  the  people  were  still  strongly 
attached  to  their  State  courts. 

But  about  the  close  of  Washington's  second 
administration  the  judiciary  became  involved 
in  partisan  politics  and  began  to  assert  their 
power  with  increased  vigor.  Anti-federalist 
and  States'  rights  sentiment  formed  the  basis 
for  a  division  into  political  parties  and  the 
consequent  growth  of  party  spirit,  which  was 
regarded  as  destructive  to  constitutional  gov- 
ernment, seemed  to  strike  at  the  root  of  the 
old  order.  '  '  The  very  idea  of  the  power  and 
the  right  of  the  people  to  establish  govern- 
ment, "  said  Washington  in  his  farewell  ad- 
dress, "presupposes  the  duty  of  every  indi- 
vidual to  obey  the  established  government. 
All  obstructions  to  the  execution  of  the  laws, 

00  Jay :  Correspondence,  iv,  p.  284. 


46  JUDICIAL  TENURE  IN 

all  combinations  and  associations  under  what- 
ever plausible  character,  with  the  real  design 
to  direct,  control,  counteract,  or  awe  the  regu- 
lar deliberations  of  the  constituted  authori- 
ties, are  destructive  of  this  fundamental  prin- 
ciple and  of  fatal  tendency. " 

As  one  writer  has  pointed  out,  "the  be- 
havior of  the  Federalist  judges  during 
Adams'  administration  would  seem  to  be  an 
amazing  exhibition  of  headlong  and  reckless 
partisanship,  if  not  viewed  in  the  light  of 
their  ideas  of  constitutional  privilege  and 
duty.  They  were  trying  to  uphold  the  tradi- 
tional ideal  of  government.  They  let  no 
opportunity  pass  of  instructing  the  people 
how  monstrous  and  horrid  a  thing  it  was  for 
them  to  rebel  against  magisterial  control  and 
disturb  the  conditional  balance  of  power 
among  the  departments  of  government  by 
seditious  attempts  to  interfere  in  the  admin- 
istration of  public  affairs.  The  charges  to  a 
grand  jury  at  times  became  a  political  ha- 
rangue. In  western  Pennsylvania,  Judge 
Addison,  of  the  State  judiciary,  delivered  a 
series  of  charges  on  Jealousy  of  the  Admin- 
istration and  Government,  the  Horrors  of 
Eevolution,  etc.,  pointing  out  to  the  people 


THE  UNITED  STATES  47 

what  terrible  things  were  likely  to  happen  if 
they  were  not  dutiful  in  their  behavior 
towards  constituted  authority. ' m  Ellsworth, 
who  had  succeeded  Jay  as  chief  justice  of  the 
supreme  court,  expressed  great  admiration 
for  these  addresses  and  wrote  Secretary 
Pickering:  "I  thank  you  for  sending  me  the 
charge  of  that  painstaking  Judge  Addison, 
who  seems  to  be  a  light  shining  in  darkness, 
though  the  darkness  comprehends  him  not." 
A  little  later  Ellsworth  himself  denounced 
Jefferson  and  the  whole  Eepublican  party  as 
"apostles  of  atheism  and  anarchy,  bloodshed 
and  plunder.  "83 

In  the  elections  of  1800  the  Federalists 
were  defeated  in  both  the  legislative  and  ex- 
ecutive departments  of  the  national  govern- 
ment but  to  retain  their  control  of  the  judi- 
ciary they  determined  to  fill  the  courts  with 
partisan  appointees.  To  that  end  an  act  was 
passed  on  February  13,  1801,  altering  the 
judiciary  system  by  the  reduction  of  the  su- 
preme court,  after  a  vacancy  should  occur,  to 
five  justices,  the  creation  of  sixteen  new 

91  Ford:  Kise  and  Growth  of  American  Politics,  p.  112. 

92  Flanders :  Lives  of  the  Chief  Justices,  ii,  p.  193. 
»3  Ford:  p.  113. 


48  JUDICIAL  TENURE  IN 

judgeships  for  the  establishment  of  a  series 
of  circuit  courts,  and  the  abolition  of  the  dis- 
trict courts  for  Tennessee  and  Kentucky,  the 
business  of  which  was  transferred  to  the  new 
circuit  courts.94  By  this  arrangement  the  en- 
tire judiciary  system  remained  in  the  hands 
of  the  Federalists  when  the  Jefferson  admin- 
istration came  into  power. 

Republican  hostility  against  the  judiciary 
was  at  once  aroused  and  the  question  of  judi- 
cial tenure  came  to  the  front  as  a  vital  issue 
of  the  day.  Jefferson  had  criticised  the  ju- 
diciary when,  in  the  enforcement  of  the  sedi- 
tion act,  they  had  punished  Matthew  Lyon 
for  his  attacks  upon  the  Adams  administra- 
tion. At  that  time  he  wrote:  "I  know  not 
which  mortifies  me  most,  that  I  should  have 
to  write  what  I  think,  or  that  my  country 
bear  such  a  state  of  things.  Yet  Lyon's 
judges,  and  a  jury  of  all  nations  are  objects 
of  rational  fear. ' m  He  now  became  an  active 
participant  in  a  movement  which  had  as  its 
object  the  destruction  of  the  constitutional 
guarantees  which  surrounded  the  judiciary 
and  the  removal  from  office  of  all  those  judges 

94  Annals,  6th  Cong.,  p.  1534. 

95  Jefferson  MSS.,  Nov.  26,  1798. 


THE  UNITED  STATES  49 

who  differed  from  him  and  his  party  in 
politics.  Within  a  year  the  Republicans  had 
secured  the  repeal  of  the  judiciary  act  of 
1801,  legislating  out  of  office  all  the  judges 
created  by  that  act.  Beginning  in  Pennsyl- 
vania in  the  impeachment  and  removal  of 
Judge  Addison  and  the  attempted  impeach- 
ment and  removal  of  the  entire  supreme 
court  of  the  State,  a  movement  spread  to 
secure  the  removal  by  the  same  means  of  the 
Federalist  judges  in  the  courts  of  the  United 
States.  Although  successful  in  securing  the 
removal  of  Judge  Pickering  of  the  district 
court  for  New  Hampshire,  the  Republicans 
were  decisively  defeated  in  their  career  of 
"  judge  breaking "  in  their  failure  to  convict 
Associate  Justice  Chase  of  the  supreme  court 
of  the  United  States  and  the  movement  came 
to  an  abrupt  close. 

The  federal  judiciary  emerged  from  these 
attacks  secure  in  the  independence  of  their 
functions  and  the  tenure  of  their  offices.  As 
a  result  of  the  decision  in  Marbury  v.  Madi- 
son and  the  acceptance  of  the  doctrine  of  ju- 
dicial review  as  part  of  the  constitutional  law 
of  the  various  States  it  became  a  settled  prin- 
ciple that  the  courts  not  the  legislature  should 


50  JUDICIAL  TENURE  IN 

draw  the  line  separating  the  functions  of  the 
three  departments  of  government.  And  in 
the  reaction  following  the  acquittal  of  Jus- 
tice Chase  it  became  apparent  that  never 
again  would  Congress  begin  a  systematic 
attack  upon  the  judges  from  partisan  motives. 


CHAPTER  II 

CONGRESS  AND  THE  INFERIOR 
COURTS 

The  discretionary  power  vested  in  Con- 
gress "to  ordain  and  establish  inferior  courts 
of  the  United  States "  became  the  subject  of 
debate  in  the  first  Congress  and  the  extent 
of  this  power  has  been  a  controverted  point 
since  1801.  The  establishment  of  inferior 
federal  courts  was  strenuously  opposed  by 
the  States'  rights  element  who  thought  that 
the  State  courts  ought  to  be  left  to  decide  all 
cases  in  the  first  instance.1  In  the  Senate, 
Pierce  Butler  made  a  "flaming  speech " 
against  the  judiciary  act  of  1789  and  Richard 
Henry  Lee  sought  to  have  the  jurisdiction  of 
the  federal  courts  limited  to  admiralty  and 
maritime  cases.2  But  the  act  was  carried  by 
the  majority  view  that  "if  we  have  a  govern- 
ment pervading  the  Union,  we  must  have  a 
judicial  power  of  similar  magnitude ;  we  must 

1  Annals,  1st  Cong.,  p.  827. 

2  Maclay :  Journal,  pp.  74,  85. 


52  JUDICIAL  TENURE  IN 

establish   courts   in   different   parts    of   the 
Union.  "3 

Likewise  the  independence  of  the  judges 
was  a  principle  at  this  time  well  understood 
by  members  of  Congress  to  extend  to  the  in- 
ferior courts.  Mr.  Smith,  of  South  Carolina, 
pointed  out  that  it  would  not  be  easy  to  alter 
the  system  when  once  established.  "The 
judges,"  he  said,  "are  to  hold  their  commis- 
sions during  good  behavior,  and  after  they 
are  appointed  they  are  removable  only  by 
impeachment;  in  consequence  the  system 
must  be  a  permanent  one. '  '*  Madison  rested 
his  objection  to  vesting  the  State  courts  with 
jurisdiction  over  federal  cases  on  the  ground 
that,  in  many  States,  the  judges  were  "so 
dependent  on  the  State  legislatures  that  to 
make  the  Federal  laws  dependent  on  them 
would  throw  us  back  into  all  the  embarrass- 
ments that  characterized  our  former  situa- 
tion. He  did  not  see  how  it  could  be  made 
compatible  with  the  Constitution,  or  safe  to 
the  Federal  interests,  to  make  a  transfer  of 
the  Federal  jurisdiction  to  the  State  courts."5 

3  Annals,  1st  Cong.,  p.  860. 
*  Ibid.,  p.  828. 
s  Ibid.,  p.  813. 


THE  UNITED  STATES  53 

Although  the  opponents  of  the  inferior 
federal  courts  were  defeated,  the  slow  devel- 
opment of  the  federal  judiciary  during  the 
first  decade  of  its  existence  indicated  a 
marked  distrust  on  the  part  of  the  vast  body 
of  the  people  toward  this  new  institution. 
The  first  United  States  circuit  courts  were 
attended  with  little  business  and  the  first  two 
sessions  of  the  supreme  court  saw  presented 
but  three  cases,  and,  either  for  want  of  busi- 
ness or  of  a  quorum,  the  court  adjourned  from 
day  to  day.  When  the  courts  did  begin  to 
exercise  authority  in  the  enforcement  of  the 
alien  and  sedition  acts,  States'  rights  senti- 
ment blazed  forth  in  the  Virginia  and  Ken- 
tucky resolutions  of  1798  and  1799  and  the 
federal  judiciary  again  became  the  target  of 
attack. 

I 

Congress  had  made  no  move  to  interfere 
with  the  federal  judiciary,  and  the  first 
change  in  the  system  as  organized  by  the  act 
of  1789  came  in  the  act  of  1801,  which  placed 
in  office  a  number  of  Federalist  judges  after 
that  party  had  been  defeated  in  the  other  de- 
partments of  government.  The  intent  of  the 


54  JUDICIAL  TENURE  IN 

framers  of  the  judiciary  act  of  1801  has  been 
to  the  present  day  a  matter  of  some  doubt. 
On  the  one  hand  it  has  been  shown  that  al- 
terations in  the  judiciary  system  of  the 
United  States  had  long  been  agitated  before 
the  failure  of  the  Federalist  party  in  the 
elections  of  1800.6  Soon  after  the  establish- 
ment of  federal  courts  in  1789  relief  had  been 
sought  by  the  justices  of  the  supreme  court 
from  the  arduous  duties  necessitated  in  rid- 
ing the  circuits.7  In  1799  a  bill  designed  to 
establish  a  system  of  circuit  courts  was  re- 
ported upon  which  action  was  postponed. 
But  this  later  became  the  basis  for  the  act  of 
1801.8  It  has,  therefore,  been  contended  that, 
quite  apart  from  the  political  advantage  given 
the  Federalists  by  the  passage  of  the  act  of 
1801,  such  changes  in  the  judiciary  system 
were  warranted  by  necessity. 

At  the  same  time  it  is  equally  clear  that 
the  amount  of  business  before  the  courts  of 
the  United  States,  although  it  had  been  ex- 
cessive, had  begun  to  decline.  No  further 
prosecutions  were  to  be  expected  under  the 

«  See  Farrand :  American  Historical  Eeview,  v,  p.  682. 
7  American  State  Papers,  Misc.,  i,  pp.  51-52. 
s  Annals,  7th  Cong.,  1st  Sess.,  p.  672. 


THE  UNITED  STATES  55 

alien  and  sedition  acts,  and  a  decrease  in  the 
number  of  suits  before  the  federal  courts  in- 
volving other  questions  was  observed  even 
before  the  accession  of  Jefferson  to  the  presi- 
dency.9 Although  the  expense  involved  in  the 
creation  of  the  sixteen  additional  judgeships 
was  grossly  overestimated  at  the  time,10  it 
cannot  be  doubted  that  the  Republicans  with 
their  avowed  policy  of  retrenchment  had  solid 
ground  for  feeling  that  these  changes  in  the 
judiciary  burdened  the  nation  with  an  un- 
necessary expenditure.11 

But  what  aroused  the  bitterest  hostility 
among  the  Eepublicans  was  the  partisan 
character  of  the  appointments  made  by  Presi- 
dent Adams  to  the  newly  created  offices. 
Nominated  and  confirmed  during  the  last 
hours  of  his  administration,  every  officer  was 
a  staunch  Federalist  and  thoroughly  wanting 
in  sympathy  with  the  new  party  which  was 
so  soon  to  come  into  power.  A  constitutional 
prohibition  prevented  the  President  from  re- 

9  American  State  Papers,  Misc.,  i,  p.  319  et  seq. 

10  In  the  debates  on  the  repeal  of  the  act  of  1801  the 
Republicans  claimed  the  expense  of  the  new  courts  to  be 
$137,000.     Professor  Farrand  estimates  the  expense  at  not 
more  than  $50,000.     American  Historical  Review,  v,  p.  685. 

11  Annals,  7th  Cong.,  1st  Sess.,  p.  26. 


56  JUDICIAL  TENURE  IN 

warding  his  friends  in  Congress  with  places 
upon  the  new  circuit  courts.12  But  places 
were  found  for  Richard  Bassett,  who  as  a 
presidential  elector  in  1797  had  voted  for 
Adams,  and  for  Jeremiah  Smith,  who  had  dis- 
tinguished himself  during  the  two  adminis- 
trations of  Washington  by  his  unwavering 
loyalty  in  the  support  of  all  Federalist  meas- 
ures before  Congress.  Charles  Lee,  Adams' 
attorney  general,  and  Oliver  Wolcott,  who 
succeeded  Hamilton  as  secretary  of  the  treas- 
ury and  won  the  undying  enmity  of  the  Re- 
publicans by  his  conduct  of  that  office,  were 
similarly  rewarded.  Jared  Ingersoll  and 
Philip  Barton  Key,  ardent  Federalist  parti- 
sans, were  also  commissioned.13 

Other  appointments  to  the  circuit  courts 
were  for  the  most  part  made  by  promotion 
from  the  district  courts.  To  the  vacancies 
created  in  these  courts  President  Adams  fol- 
lowed the  same  policy  of  appointing  loyal 
Federalists.  Elijah  Paine  and  Ray  Greene, 
members  of  the  United  States  Senate,  and 
William  H.  Hill  and  Jacob  Read,  members 
of  the  House  of  Representatives,  left  Con- 

12  Art.  I,  Sec.  4. 

13  Executive  Journal  (1789-1805),  pp.  381,  383. 


THE  UNITED  STATES  57 

gress  to  receive  places  on  the  district  courts. 
Harrison  Gray  Otis  and  John  Wilkes  Kit- 
tera,  able  advocates  of  Federalist  policies  in 
the  House  of  Representatives,  departed  at 
the  same  time,  carrying  with  them  commis- 
sions to  United  States  district  attorney- 
ships.14  It  is  not  surprising,  therefore,  that 
factional  feeling  among  the  Eepublicans  ran 
high  and  severe  criticism  was  meted  out  to 
the  courts. 

But  whether  the  "act  to  provide  for  the 
more  convenient  organization  of  the  courts 
of  the  United  States ' '  was  the  result  of  a  par- 
tisan attempt  of  the  Federalists  to  retain  a 
hold  on  the  national  government  after  they 
had  been  defeated  in  the  elections  of  1800 
may  or  may  not  be  true.  The  fact  is  that  by 
a  large  group  the  changes  were  believed  to  be 
of  this  character.  A  letter  of  Stevens  Thom- 
son Mason,  a  close  friend  of  Thomas  Jeffer- 
son, declares  that  "a  new  judiciary  system 
has  been  adopted  with  a  view  to  make  per- 
manent provision  for  such  of  the  Federalists 
and  Tories  as  cannot  hope  to  continue  in 
office  under  the  new  administration."15 

"Executive  Journal   (1 789-] 805),  pp.  384-385. 

IB  Breckinridge  MSS.,  Feb.    (19),   1801.     The  collection 


58  JUDICIAL  TENURE  IN 

II 

The  Republican  hostility  to  the  judiciary 
was  greatly  increased  and,  led  by  the  extreme 
States'  rights  advocates,  a  concerted  action 
was  planned  by  the  Jefferson  administration 
to  undo  the  work  of  their  predecessors.  How 
this  was  to  be  done  occasioned  much  concern, 
since  the  independence  of  the  judiciary  was 
a  principle  recognized  by  Eepublicans  and 
Federalists  alike.  The  question  was  raised 
by  William  Branch  Giles  in  March,  1801,  in 
a  letter  to  Jefferson  when  he  suggested  that 
' '  a  pretty  general  purgation  of  office  has  been 
one  of  the  benefits  expected  by  the  new  order 
of  things. ' '  But  the  difficulties  in  the  way  of 
any  sweeping  changes  in  the  judiciary  he 
recognized  by  the  admission  that  "the  only 
check  upon  the  judiciary  system  as  it  is  now 
organized  and  filled  is  the  removal  of  all  its 
executive  officers  indiscriminately. ' ne  Jeffer- 
son seems  to  have  been  satisfied  that  this  was 
as  far  as  they  could  go  without  exceeding  the 

of  the  Breckinridge  family  -papers  in  the  Library  of  Con- 
gress has  not  yet  been  opened  to  the  public.    I  am  indebted 
to   Miss   Sophonisba  Breckinridge  for  permission   to   make 
use  of  these  unusually  valuable  MSS. 
i«  Jefferson  MSS.,  March  16,  1801. 


THE  UNITED  STATES  59 

limits  of  their  authority,  and  replied  to  Giles 
that  "the  courts  being  so  decidedly  Federal 
and  irremovable,  it  is  believed  that  Republi- 
can  attorneys  and  marshals,  being  the  doors 
of  entrance  to  the  courts,  are  indispensably 
necessary  to  the  Republican  part  of  our  fellow 
citizens,  which  is  the  main  body  of  our 
people/'17 

But  the  removal  of  the  executive  officers  of 
the  courts  was  of  little  avail  so  long  as  the 
judges  remained,  and  by  June  the  actual  in- 
vasion of  the  judiciary  was  suggested.  Then 
Giles  came  to  the  conclusion  that '  '  no  remedy 
is  competent  to  redress  the  evil  but  an  abso- 
lute repeal  of  the  whole  judiciary  system  ter- 
minating the  present  offices  and  creating  an 
entire  new  system,  defining  the  common  law 
doctrine,  and  restraining  to  the  proper  con- 
stitutional extent  the  jurisdiction  of  the 
courts.  "18 

While  the  federal  judiciary  system  was 
under  discussion  by  the  friends  of  the  admin- 
istration at  Washington,  it  also  became  the 
target  of  an  assault  in  Kentucky.  In  that 
State  the  people  had  just  completed  the  or- 

IT  Jefferson  MSS.,  March  23,  1801. 
is  Ibid.,  June  1,  1801. 


60  JUDICIAL  TENURE  IN 

ganization  of  a  judiciary  system  and  feared 
the  interference  of  the  new  circuit  courts  with 
the  jurisdiction  of  their  State  tribunals. 
Long  before  the  message  of  President  Jeffer- 
son in  which  he  suggested  that  Congress  give 
attention  to  the  judiciary  system,  John 
Breckinridge  had  been  the  recipient  of  nu- 
merous letters  from  his  constituents  urging 
that  he  strive  for  the  repeal  of  the  act  of 
1801.  One  such  writer  declared: 

There  is  no  act  of  the  former  Congress  that  in 
my  opinion  will  work  more  subtle  or  certain  mis- 
chief than  that  of  extending  their  courts, — as  its 
tendency  will  be  to  disunite  the  people  and  to  wean 
their  affections  for  their  State  governments.  In 
Kentucky  it  will  operate  more  mischievously  than 
anywhere  else,  by  jeopardizing  those  principles 
upon  which  our  courts  have  hitherto  proceeded  in 
settling  their  land  controversies.  I  much  hope  this 
law  will  be  repealed  or  so  much  altered  that  we 
may  feel  easy  under  it.  With  the  other  excres- 
cences of  aristocratic  legislation  these  additional 
judges  may  be  left  to  graze  in  their  own  pastures.19 

To  the  support  of  the  Eepublicans  in  their 
partisan  attack  on  the  Federalists  in  the  ju- 
diciary came  the  States '  rights  element.  The 

is  Breckinridge  MSS.,  Nov.  21,  1801. 


THE  UNITED  STATES  61 

controversy  which  had  raged  over  the  estab- 
lishment of  inferior  federal  courts  in  the  con- 
vention of  1787  and  in  the  first  Congress  was 
reopened.  Not  only  the  repeal  of  the  ob- 
noxious act  of  1801  was  demanded,  but  many 
wished  to  have  the  jurisdiction  of  the  federal 
courts  curtailed  and  the  inferior  courts  abol- 
ished entirely.  Senator  Breckinridge  was 
urged  to  "go  farther  and  make  such  a  change 
in  the  Constitution  as  to  limit  the  jurisdiction 
of  the  Federal  courts  to  courts  of  admiralty 
and  cases  arising  under  the  Constitution. ' ' 
If  this  could  not  be  done,  he  was  asked  to 
"have  it  done  away  with  in  the  State  of  Ken- 
tucky." His  constituents  pointed  out  that 
Kentucky  was  so  remote  from  the  Atlantic 
and  had  interests  so  distinct  from  the  eastern 
section  of  the  country  that  the  exercise  of 
authority  by  the  federal  courts  interfered 
materially  with  their  welfare.20 

Breckinridge  was  not  long  in  making  up 
his  mind  to  lead  the  movement  for  the  repeal 
of  the  unpopular  law.  About  the  time  the 
first  message  of  President  Jefferson  was  read 
in  Congress  he  wrote  to  John  Taylor  of  Caro- 
line asking  his  views  on  the  judicial  system, 

20  Breckinridge  MSS.,  Feb.  22,  1802. 


62  JUDICIAL  TENURE  IN 

and  requesting  some  suggestions  as  to  how 
a  revision  might  be  brought  about.  In  reply 
Taylor  wrote  a  long  academic  argument  which 
became  the  basis  of  the  Eepublican  attack  in 
the  debates  in  Congress  on  the  repeal.  He 
considered  that  the  question  possessed  two 
phases:  first,  whether  the  office  should  con- 
tinue ;  and  second,  whether  the  officer  should 
continue  after  the  office  had  been  abolished 
as  being  unnecessary.  As  to  the  first,  he  said : 

Congress  are  empowered  from  time  to  time  to 
ordain  and  establish  inferior  courts.  The  law  for 
establishing  the  present  inferior  courts  is  a  legis- 
lative instruction  affirming  that,  under  this  clause, 
Congress  may  abolish  as  well  as  create  these  judi- 
cial offices;  because  it  does  expressly  abolish  the 
then  existing  courts  for  the  purpose  of  making 
way  for  the  present.21 

It  is  probable  that  this  construction  is  correct, 
but  it  is  equally  pertinent  to  our  object  whether 
it  is  or  not.  If  it  is,  then  the  present  inferior  courts 
may  be  abolished  as  constitutionally  as  the  last ;  if 
it  is  not,  then  the  law  for  abolishing  the  former 
and  establishing  the  present  was  unconstitutional, 
and  being  so,  is  undoubtedly  repealable.  Thus  the 

21  Although  the  act  of  1801  abolished  the  district  courts 
in  Kentucky  and  Tennessee  the  judges  were  retained  in  the 
new  circuit  courts. 


THE  UNITED  STATES  63 

only  ground  which  the  present  inferior  courts  can 
take  is  that  Congress  may  from  time  to  time  create, 
regulate,  or  abolish  such  courts  as  the  public  in- 
terest dictate,  because  such  is  the  very  tenure  under 
which  they  exist.22 

The  tenure  of  the  judges  whose  courts  had 
been  abolished  by  the  act  of  1801  had  not  been 
abridged,  but  it  would  be  little  suited  to  the 
purposes  of  Breckinridge  and  Ms  partisans 
if  they,  after  abolishing  the  circuit  courts, 
were  obliged  to  create  new  courts  for  the  six- 
teen judges  whose  offices  had  been  destroyed. 
Taylor,  therefore,  in  the  second  part  of  his 
argument,  sought  to  point  out  a  way  by  which 
the  commissions  might  be  destroyed  as  well 
as  the  offices.  He  said : 

The  Constitution  declares  that  the  judge  shall 
hold  his  office  during  good  behavior.  Could  it 
mean  that  he  should  hold  this  office  after  it  was 
abolished?  Could  it  mean  that  his  tenure  should 
be  limited  by  behaving  well  in  an  office  which  did 
not  exist?  It  must  either  have  intended  these  ab- 
surdities or  admit  of  a  construction  which  will 
avoid  them.  This  construction  obviously  is  that 
an  officer  should  hold  that  which  he  might  hold, 
namely  an  existing  office,  so  long  as  he  did  that 

22  Breckinridge  MSS.,  Dec.  22,  1801. 


64  JUDICIAL  TENURE  IN 

which  he  might  do,  namely  his  duty  in  that  office ; 
and  not  that  he  should  hold  an  office  which  did  not 
exist  or  perform  duties  not  sanctioned  by  law.  If, 
therefore,  Congress  can  abolish  the  courts,  as  they 
did  by  the  last  law,  the  officer  dies  with  the  office, 
unless  you  allow  the  Constitution  to  admit  impos- 
sibilities as  well  as  absurdities. 

Moreover  the  salary  is  to  be  paid  during  their 
continuance  in  office.  This  limitation  of  salary  is 
perfectly  clear  and  distinct.  It  literally  excludes 
the  idea  of  paying  a  salary  when  the  officer  is  not  in 
office;  and  it  is  undeniably  certain  that  he  cannot 
be  in  office  when  there  is  no  office.  There  must 
have  been  some  other  mode  by  which  the  officer 
should  cease  to  be  in  office  than  that  of  bad  be- 
havior, because  if  this  had  not  been  the  case  the 
Constitution  would  have  directed  that  the  judges 
should  hold  their  offices  and  salaries  during  their 
good  behavior,  instead  of  directing  that  they  should 
hold  their  salaries  during  their  continuance  in 
office.  This  could  only  be  an  abolition  of  the  office 
itself  by  which  the  salary  would  cease  with  the 
office  although  the  judge  might  have  conducted 
himself  unexceptionably.  This  construction  cer- 
tainly coincides  with  the  public  opinion  and  the 
principles  of  the  Constitution.  By  neither  is  the 
idea  tolerated  of  maintaining  burthensome  sine- 
cure offices  to  enrich  unfruitful  individuals. 

Nor  is  it  incompatible  with  the  good  behavior 


THE  UNITED  STATES  65 

tenure  when  its  origin  is  considered.  It  was  in- 
vented in  England  to  counteract  the  influence  of 
the  crown  over  the  judges.  And  we  have  rushed 
into  the  principle  with  such  precipitancy,  in  imita- 
tion of  this  our  general  prototype,  as  to  have  out- 
stripped monarchists  in  our  efforts  to  establish  a 
judicial  oligarchy;  their  judges  being  removable 
by  a  joint  vote  of  Lords  and  Commons,  and  ours 
by  no  similar  or  easy  process. 

The  tenure,  however,  is  evidently  bottomed  on 
the  idea  of  securing  the  honesty  of  judges  while 
exercising  the  office,  and  not  upon  that  of  sustain- 
ing useless  or  pernicious  offices  for  the  sake  of  the 
judges.  The  regulation  of  offices  in  England,  and 
indeed  of  inferior  offices  in  most  or  all  countries, 
depends  upon  the  legislature;  it  is  a  part  of  the 
detail  of  government  which  necessarily  devolves 
upon  it,  and  is  beyond  the  foresight  of  a  consti- 
tution because  it  depends  upon  variable  circum- 
stances. And  in  England  a  regulation  of  the 
courts  of  justice  was  never  supposed  to  be  a  viola- 
tion of  the  good  behavior  tenure.  If  this  principle 
should  disable  Congress  from  erecting  tribunals 
which  temporary  circumstances  might  require, 
without  entailing  them  upon  the  society  after  these 
circumstances  by  ceasing  had  converted  them  into 
grievances,  it  would  be  used  in  a  mode  contem- 
plated neither  in  its  original  or  duplicate. 

Whether  courts  are  erected  by  a  regard  to  the 


66  JUDICIAL  TENURE  IN 

administration  of  justice  or  with  the  purpose  of 
rewarding  a  meritorious  faction,  the  legislature 
may  certainly  abolish  them  without  infringing  the 
Constitution  whenever  they  are  not  required  by 
the  administration  of  justice,  or  the  merit  of  the 
faction  is  exploded  and  their  claim  to  reward 
disallowed.23 

Breckinridge,  in  moving  the  repeal  of  the 
act  of  1801  on  January  6,  1802,  took  the 
ground  that  the  changes  made  in  the  ju- 
diciary were  unnecessary  and  improper  in 
that  they  had  increased  the  number  of  federal 
judges  at  a  time  when  the  amount  of  business 
pending  before  the  courts  of  the  United  States 
was  steadily  declining.  Following  the  argu- 
ment of  Taylor,  and  in  many  points  using  the 
identical  words  of  the  latter,  lie  strove  to  show 
the  power  of  Congress  to  put  down  the  addi- 
tional courts  together  with  their  judges.24 
He  accepted  the  construction  laid  down  by 
Taylor  that  the  act  of  1801  was  "a  legislative 
construction"  of  the  power  of  Congress 
"from  time  to  time,  to  ordain  and  establish 
inferior  courts, "  giving  to  Congress  the 
power  to  abolish  as  well  as  to  create  inferior 

23  Breckinridge  MSS.,  Dec.  22,  1801. 

24  Annals,  7th  Cong.,  1st  Sess.,  p.  26. 


THE  UNITED  STATES  67 

courts,  because  the  two  districts  were  abol- 
ished by  the  twenty-seventh  section  of  that 
act.  But  independent  of  this  legislative  con- 
struction, he  insisted  that  it  would  be  a  para- 
dox in  legislation  to  say  that  the  legislature 
in  one  Congress  has  a  discretionary  power  to 
establish  inferior  courts  and  yet  be  restrained 
from  abolishing  them  in  a  subsequent  Con- 
gress of  equal  authority. 

With  respect  to  the  judges  he  was  equally 
certain  that  they  must  cease  to  be  in  office 
when  the  repeal  of  the  act  was  accomplished. 
The  constitutional  guarantees,  he  thought, 
protected  them  against  removal  by  the  ex- 
ecutive or  diminution  of  their  salaries  by  the 
legislature  but  never  contemplated  the  pos- 
sibility of  their  surviving  the  destruction  of 
their  offices.  This  would  be  to  create  a  group 
of  "nondescripts"  unacknowledged  by  either 
the  letter  or  the  spirit  of  the  Constitution.25 

The  Republicans  at  once  assumed  the 
ground  that  the  inferior  courts  are  the  crea- 
tures of  the  legislature.  "I  observe, "  said 
Stevens  Thomson  Mason,  "a  clear  distinc- 
tion between  the  Supreme  Court  and  the  other 
courts.  With  regard  to  the  institution  of  the 

25  Annals,  7th  Cong.,  1st  Sess.,  p.  29. 


68  JUDICIAL  TENURE  IN 

Supreme  Court  the  words  of  the  Constitution 
are  imperative;  while  with  regard  to  the  in- 
ferior courts  they  are  discretionary. ' '  From 
the  language  of  the  Constitution  he  thought 
that  no  other  view  could  be  taken  than  that 
"the  Legislature  should  have  power,  from 
time  to  time,  to  create,  to  annul,  or  to  modify 
the  courts  as  the  public  good  might  require, 
whenever  a  change  of  circumstances  may 
suggest  the  propriety  of  a  different  organi- 
zation. "M 

The  existence  of  certain  constitutional 
guarantees  protecting  the  judges  he  admitted, 
but  thought  they  amounted  to  this:  "That, 
unlike  other  officers  appointed  by  the  Presi- 
dent, judges  shall  not  be  removed  by  him; 
that  their  salaries  shall  not  be  diminished  by 
the  legislature ;  and  that  while  the  legislature 
may  continue  any  particular  judicial  estab- 
lishment under  which  a  judge  is  appointed, 
he  shall  hold  that  appointment  in  defiance  of 
both  the  other  departments  of  government." 
Any  other  construction  he  thought  would 
render  the  judges  independent  of  the  nation 
itself.27 

26  Annals,  7th  Cong.,  1st  Sess.,  p.  60. 

27  Ibid.,  p.  64. 


THE  UNITED  STATES  69 

The  control  given  the  legislature  over  the 
inferior  courts  it  was  held  undoubtedly  vested 
in  Congress  a  power  of  removal.  Senator 
Stone  went  so  far  as  to  declare  that  not  only 
could  courts  be  abolished  by  the  repeal  of  the 
legislative  enactments  creating  them,  but 
Congress  might  indeed  remove  a  judge  with- 
out discontinuing  his  office.  This  radical 
position  did  not  find  favor  even  among  the 
Republicans  and  was  repeatedly  disavowed 
by  other  members  of  the  party.  But  Senator 
Stone  contended  that  although  misbehavior 
is  not  an  impeachable  offense  yet  it  is  the 
ground  upon  which  the  judges  are  to  be  re- 
moved from  office,  wherefore  ' '  the  process  of 
impeachment  cannot  be  the  only  one  by  which 
judges  may  be  removed  from  office,  under, 
and  according  to  the  Constitution. "  He 
thought  it  "to  be  a  thing  undeniable,  that 
there  resides  somewhere  in  the  government 
a  power  to  declare  what  shall  amount  to  mis- 
behavior in  office  by  the  judges,  and  to  re- 
move them  from  office  for  the  same,  without 
impeachment. '  '28 

But  from  the  Federalist  ranks  Gouverneur 
Morris  rose  and  denied  that  the  people  had 

28  Annals,  7th  Cong.,  1st  Sess.,  p.  72. 


70  JUDICIAL  TENURE  IN 

vested  all  powers  in  the  legislature.  On  the 
contrary,  he  said,  they  had  "vested  in  the 
judges  a  check  intended  to  be  efficient — a 
check  of  the  first  necessity,  to  prevent  an  in- 
vasion of  the  Constitution  by  unconstitutional 
laws — a  check  which  might  prevent  any  fac- 
tion from  intimidating  or  annihilating  the 
tribunals  themselves.  "29  He  answered  Mr. 
Stone  by  pointing  out  that  in  our  law  mis- 
behavior is  not  known  but  must  be  expressed 
by  the  term  misdemeanor  which  is  embraced 
within  the  constitutional  provision.  That 
Congress  could  assume  any  right  from  the 
deficiency  of  the  Constitution  in  this  respect 
he  denied.30 

The  argument  of  the  Eepublicans  that  the 
act  of  1801  was  unconstitutional  in  abolishing 
the  district  courts  of  Kentucky  and  Tennes- 
see, Morris  showed  to  be  unsound.  "If  the 
law  is  unconstitutional/'  he  said,  "why  re- 
peal? In  this  case  no  repeal  can  be  neces- 
sary; the  law  is  in  itself  void;  it  is  a  mere 
dead  letter. "81  But  the  power  to  declare 
such  an  act  invalid  rests  with  the  judiciary, 

29  Annals,  7th  Cong.,  1st  Sess.,  p.  38. 
so  Ibid.,  p.  90. 
si  Ibid.,  p.  81. 


THE  UNITED  STATES  71 

and  it  was  for  this  reason  that  Jonathan 
Mason  urged  the  necessity  for  the  independ- 
ence of  the  judges  "because  the  duties  which 
they  have  to  perform  call  upon  them  to  ex- 
pound not  only  the  laws  but  the  Constitution 
also ;  in  which  is  involved  the  power  of  check- 
ing the  Legislature  in  case  it  should  pass  any 
laws  in  violation  of  the  Constitution.  For 
this  reason  it  was  important  that  the  judges 
should  be  placed  beyond  the  control  of  the 
Legislature. ' m 

Breckinridge,  in  alarm  at  the  turn  the  de- 
bate was  taking,  made  a  complete  denial  of 
the  power  of  the  courts  to  review  acts  of  the 
legislature.  No  such  power,  he  insisted,  was 
granted  by  the  Constitution,  and  the  legis- 
lature have  an  equal  right  of  interpretation 
with  the  courts;  therefore  "the  Legislature 
have  the  exclusive  right  to  interpret  the  Con- 
stitution in  what  regards  the  law-making 
power,  and  the  judges  are  bound  to  execute 
the  laws  they  make."33  Scarcely  had  he  fin- 
ished when  Gouverneur  Morris  was  on  his 
feet  demanding  to  know 

82  Annals,  7th  Cong.,  1st  Sess.,  p.  32. 

83  Ibid.,  p.  179. 


72  JUDICIAL  TENURE  IN 

If  gentlemen  are  prepared  to  establish  one  con- 
solidated government  over  this  country?  All  the 
arguments  they  have  used  in  this  debate  went  to 
that  conclusion.  The  power  of  the  courts  to  decide 
upon  the  constitutionality  of  laws  is  derived  from 
authority  higher  than  the  Constitution;  it  is  de- 
rived from  the  constitution  of  man,  from  the 
nature  of  things,  from  the  necessary  progress  of 
human  affairs.  But  the  last  member  up  has  told 
us  that  the  legislature  may  decide  exclusively  on 
the  Constitution,  and  that  judges  are  bound  to 
execute  the  laws  which  the  legislature  enact.  If 
this  doctrine  be  sustained,  what  possible  mode  is 
there  to  avoid  the  conclusion  that  the  moment  the 
legislature  of  the  Union  declare  themselves  su- 
preme, they  become  so?  The  sovereignty  of 
America  will  no  longer  reside  in  the  people,  but 
in  Congress,  and  the  Constitution  is  whatever  they 
choose  to  make  it. 

If  America  should  be  brought  under  one  con- 
solidated government,  it  could  not  continue  to  be 
a  republic.  If  the  States  be  destroyed,  we  must 
become  the  subjects  of  despotism.  Are  the  gentle- 
men ready  to  prostrate  that  sovereignty  at  the 
feet  of  the  general  government  ?34 

That  these  radical  States'  rights  men  had 
any  intention  of  strengthening  the  national 

34  Annals,  7th  Cong.,  1st  Sess.,  pp.  180-181. 


THE  UNITED  STATES  73 

government  at  the  expense  of  the  States 
could  not  for  a  moment  be  supposed.  But 
the  argument  of  Gouverneur  Morris  left  them 
as  the  only  alternative  the  bald  admission 
that  partisan  motives  alone  formed  the  basis 
for  their  measure. 

The  independence  of  the  judiciary  was 
wholly  denied  by  Giles  when  the  subject  came 
up  for  debate  in  the  House  of  Eepresenta- 
tives.  He  had  been  one  of  the  first  to  urge 
the  repeal  as  a  means  of  ousting  from  the 
national  government  his  political  opponents,35 
and  he  now  sought  to  show  that 

The  term  independence  of  judges  or  of  the  judi- 
ciary department  was  not  to  be  found  in  the  Con- 
stitution but  was  a  mere  inference  from  some  of 
the  specified  powers.  The  Constitution  only  de- 
clared that  there  should  be  such  a  department 
formed  by  the  other  two  departments  who  owe  a 
responsibility  to  the  people.  The  only  limitation 
upon  the  power  of  Congress  consists  in  the  number 
of  supreme  courts  to  be  established,  and  the  spirit, 
as  well  as  the  words  of  the  Constitution,  are  com- 
pletely satisfied  provided  one  Supreme  Court  be 
established.  He  therefore  felt  the  firmest  convic- 
ss  Supra,  p.  59. 


74  JUDICIAL  TENURE  IN 

tion  that  there  was  no  constitutional  impediment 
in  the  way  of  repealing  the  act  in  question.36 

But  this  view  was  not  generally  sustained  by 
the  other  Republicans,  and  John  Randolph 
sought  to  "rescue  from  misrepresentation " 
the  position  to  which  Giles  had  carried  the 
debate.  He  agreed  that  "the  Constitution  is 
a  limited  grant  of  power,  and  that  none  of 
its  general  phrases  are  to  be  construed  into 
an  extension  of  that  grant,"  and  continued: 

I  am  free  to  declare  that  if  the  intent  of  this  bill 
is  to  get  rid  of  the  judges,  it  is  a  perversion  of  your 
power  to  a  base  purpose;  it  is  an  unconstitutional 
act.  If,  on  the  contrary,  it  aims  not  at  the  dis- 
placing one  set  of  men,  from  whom  you  differ  in 
political  opinion,  with  a  view  to  introducing  others, 
but  at  the  general  good  by  abolishing  useless  offices, 
it  is  a  constitutional  act.37 

On  the  other  hand,  in  both  the  House  and 
Senate  the  Federalists  contended  that  the 
tenure  of  the  judges  * '  is  not  derived  from  the 
laws  but  from  the  Constitution,"38  and  "that 
the  moment  the  judge  is  appointed,  the  office 
is  ingrafted  in,  and  becomes  a  part  of  the 

36  Annals,  7th  Cong.,  1st  Sess.,  pp.  584-586,  602. 

37  Ibid.,  p.  658. 

38  Ibid.,  p.  163. 


THE  UNITED  STATES  75 

Constitution,  and  cannot  be  taken  away  with- 
out impairing  the  Constitution  itself. '  *39  But 
they  admitted  a  distinction  between  the  office 
and  the  officer,  and  held  that  to  abolish  an 
office  and  to  remove  an  officer  were  quite  dis- 
tinct acts.  As  was  pointed  out  by  Mr.  God- 
dard, 

The  abolition  of  a  court  does  not  necessarily 
imply  that  a  judge  is  put  out  of  office,  or  the  office 
itself  discontinued.  Congress  by  law  may  erect 
courts  and  create  offices  but  justice  cannot  be 
administered  in  them  until  afterwards,  by  an  act 
of  the  President,  judges  are  appointed.  But  the 
legislature  must  do  all  that  is  done  on  this  subject 
with  an  eye  to  the  independence  of  the  judges 
already  in  office.40 

Although  the  repeal  was  carried,  the  vote 
was  along  partisan  lines  and  occasioned  the 
Eepublicans  much  concern  lest  the  supreme 
court  should  declare  the  act  unconstitutional. 
Breckinridge,  although  he  later  denied  the 
power  of  the  courts  to  review  acts  of  Con- 
gress, had  at  the  beginning  of  the  debate 
declared  that  "if  the  judges  are  entitled  to 
their  salaries  under  the  Constitution,  our  re- 

39  Annals,  7th  Cong.,  1st  Sess.,  p.  541. 

40  Ibid.,  p.  731. 


76  JUDICIAL  TENURE  IN 

peal  will  not  affect  them;  and  they  will,  no 
doubt,  resort  to  their  proper  remedy/'41 
Thereafter  an  appeal  to  the  courts  by  the 
deposed  judges  had  been  in  the  minds  of  all. 
To  prevent  such  action  the  next  session  of 
the  supreme  court  was  set  for  February, 
1803,  the  August  term  being  omitted  in  1802. 
This  was  denounced  by  James  A.  Bayard,  the 
leader  of  the  Federalists  in  the  House,  as  *  *  a 
patchwork  designed  to  cover  one  object, — 
the  postponement  of  the  next  session  of  the 
Supreme  Court  ...  to  give  the  repealing 
act  its  full  effect  before  the  judges  are  al- 
lowed to  assemble."42 

Denied  a  judicial  review  of  the  act  depriv- 
ing them  of  their  offices,  the  judges  of  the 
circuit  courts  forwarded  a  petition  to  Con- 
gress in  which  they  represented  "that  the 
rights  secured  to  them  by  the  Constitution, 
as  members  of  the  judicial  department,  had 
been  impaired,"  and  asking  that  the  case  be 
submitted  to  judicial  determination.  The 
Senate  declined  to  consider  the  petition,  while 
a  proposition  to  submit  the  matter  to  the 
courts  for  decision  was  defeated  in  the  House. 

*i  Annals,  7th  Cong.,  1st  Sess.,  p.  30. 
42  Hamilton  MSS.,  Apr.  12,  1802. 


THE  UNITED  STATES  77 

Here  it  was  held  that  the  right  to  abolish 
inferior  courts  rested  with  Congress  and  that 
the  judges  were  entitled  to  compensation 
only  for  services  rendered.43 

It  is  superfluous  to  point  out  that  the  im- 
portance of  the  repeal  of  the  act  of  1801  lay 
in  the  fact  that  the  final  determination  of  the 
right  to  abolish  inferior  courts  and  to  de- 
prive the  incumbents  thereof  of  their  com- 
missions fell  to  Congress.  No  opportunity 
being  given  the  judiciary  to  interpret  the 
Constitution  with  respect  to  this  power,  there 
was  no  means  of  challenging  the  validity  of 
the  measure  in  the  way  customary  in  our  gov- 
ernment. Congress  was,  therefore,  free  to 
claim  that  a  precedent  had  been  set  which 
should  determine  future  action  in  dealing 
with  the  judiciary. 

Although  the  Republicans  hailed  with  de- 
light the  death  of  ' '  Poor  Jude, ' '  as  they  called 
the  act  of  1801,  and  asserted  the  propriety  of 
the  means  adopted  to  secure  the  repeal,  Con- 
gress has  not  followed  the  precedent  thus  es- 
tablished. The  repealing  act,  in  so  far  as  it 
deprived  the  judges  of  their  commissions, 
has  been  condemned  by  the  leading  COmmen- 
43  Annals,  7th  Cong.,  2d  Sess.,  pp.  427-441. 


78  JUDICIAL  TENURE  IN 

tators  on  the  Constitution.  Story  declared 
that  "the  measure,  if  its  constitutionality  can 
be  successfully  vindicated,  prostrates  in  the 
dust  the  independence  of  all  inferior  judges, 
both  as  to  the  tenure  of  their  offices  and  their 
compensation  for  services,  and  leaves  the 
Constitution  a  miserable  and  vain  delu- 
sion. "44  But  Congress  has  in  every  subse- 
quent alteration  of  the  federal  judiciary  re- 
spected the  tenure  of  the  judges  of  the  courts 
abolished.  Nor  has  any  attempt  been  made 
by  Congress  to  deprive  judges  of  the  inferior 
courts  of  their  commissions,  except  in  the  re- 
cent action  in  abolishing  the  United  States 
Commerce  Court. 

Ill 

In  many  ways  the  movement  for  the  aboli- 
tion of  the  United  States  Commerce  Court  in 
1912  and  1913  was  analogous  to  the  repeal 
carried  by  the  Jefferson  administration.  In 
the  first  place,  there  was  far  less  popular  de- 
mand for  the  establishment  of  a  commerce 
court  than  arose  for  the  creation  of  circuit 
courts  in  1801.  Both  institutions  were  re- 
garded by  their  opponents  as  unnecessary 

«  Story  on  the  Constitution,  4th  ed.,  ii,  pp.  427-429. 


THE  UNITED  STATES  79 

and  expensive.  Indeed,  the  commerce  court 
owed  its  existence  solely  to  the  perseverance 
of  President  Taft  and  his  administration. 
Their  unremitting  efforts  to  secure  the  pas- 
sage of  the  bill  amending  the  interstate  com- 
merce act  in  1910  alone  prevented  the  move- 
ment for  the  creation  of  the  new  court  from 
being  sidetracked. 

In  other  respects  the  situation  differed 
markedly  from  that  of  1802.  When  the  be- 
havior of  the  commerce  court  first  came  up 
for  consideration  in  Congress,  it  became  ap- 
parent that  the  arguments  against  the  tribu- 
nal went  to  the  question  of  the  fitness  of  the 
judges  rather  than  to  the  theory  of  the  court. 
Charges  of  pro-railroad  leanings  on  the  part 
of  the  judges  of  the  commerce  court  began  to 
be  whispered  about.  These  may  have  gained 
substantial  ground  from  the  report  of  the 
interstate  commerce  commission,  where  it 
was  pointed  out  that  "out  of  27  cases  passed 
upon  by  the  commerce  court,  preliminary 
restraining  orders  or  final  decrees  have  been 
issued  in  favor  of  the  railroads  in  all  but 
seven  cases,  and  of  these  only  three  are  of 
any  magnitude. ' m  At  about  the  same  time 

451.  C.  C.  Eeport,  1911,  p.  59. 


80  JUDICIAL  TENURE  IN 

evidence  was  presented  resulting  in  the  im- 
peachment of  Judge  Archbald,  one  of  the 
members  of  the  court.  It  followed,  therefore, 
that  in  addition  to  the  objections  that  the 
commerce  court  was  unnecessary  and  unduly 
expensive,  the  discussion  in  the  House  of 
Representatives  assumed  that  the  tribunal 
was  created  to  give  the  railroads  an  advan- 
tage and  the  judges  were  not  impartial.46 

The  establishment  of  the  United  States 
Commerce  Court  in  1910  came  as  a  result  of 
attempts  to  expedite  the  hearings  of  appeals 
from  decisions  of  the  interstate  commerce 
commission  under  the  Hepburn  amendment 
to  the  act  to  regulate  commerce.  That 
amendment,  passed  in  1906,  gave  to  the  inter- 
state commerce  commission  power  to  estab- 
lish a  rate  for  the  future.  Prior  to  this  time 
the  commission  was  an  administrative  or 
quasi  judicial  body,  but  now  it  -became  en- 
dowed with  legislative  functions.47  At  the 
same  time  it  was  the  constitutional  right  of 
every  carrier  affected  by  an  order  of  the  in- 
terstate commerce  commission  to  appeal  to 

4«  Traffic  World,  is,  p.  1015. 

47  Hearings  on  the  Legislative,  Executive,  and  Judicial 
Appropriation  Bill,  1914. 


THE  UNITED  STATES  81 

a  court  to  protect  it  from  the  enforcement  of 
the  order  establishing  such  rate,  where  it 
might  appear  from  the  presentation  of  the 
facts  by  the  carrier  that  the  effect  of  the 
order  would  be  to  deprive  it  of  a  reasonable 
return  upon  its  invested  capital,  and,  there- 
fore, to  amount  to  a  taking  of  property  with- 
out due  process  of  law,  contrary  to  the  pro- 
visions of  the  fifth  and  fourteenth  amend- 
ments of  the  Constitution,  or  unjustly  to  dis- 
criminate against  the  carrier  (Smythe  v. 
Ames,  169  U.  S.).  Since  this  right  might  be 
exercised  in  any  one  of  the  courts  of  the 
United  States,  it  was  thought  that  not  only 
did  much  delay  result  in  the  final  observance 
of  the  orders  of  the  commission,  but  consider- 
able contrariety  of  decision,  with  resulting 
uncertainty  in  the  law.  To  obviate  this  con- 
dition it  was  decided  to  concentrate  the  judi- 
cial review  of  the  orders  of  the  commission 
in  one  court,  and  the  commerce  court  of  the 
United  States  was  thereupon  created. 

The  orders  of  the  interstate  commerce 
commission  are  in  form  either:  (a) .  those 
granting  relief,  requiring  a  carrier  to  cease 
and  desist  from  charging  a  particular  rate  or 
continuing  a  particular  practice,  and  pre- 


82  JUDICIAL  TENURE  IN 

scribing  another  and  less  rate  or  a  different 
practice;  or  (b)  those  denying  relief,  as  dis- 
missing a  formal  complaint  in  which  has  been 
alleged  the  unreasonableness  of  a  rate  or 
practice.  Orders  of  the  first  type  have  been 
called  " positive, "  those  of  the  second  "nega- 
tive," orders. 

The  act  creating  the  United  States  Com- 
merce Court,  among  other  powers  delegated, 
gave  them  jurisdiction  over  proceedings  "to 
enjoin,  set  aside,  annul,  suspend  in  whole  or 
in  part,  any  order  of  the  interstate  commerce 
commission."48  The  language  of  the  section 
would  indicate  that  the  court  might  enjoin 
"any  order  of  the  interstate  commerce  com- 
mission" which  they  might  think  inequitable 
or  unjust,  or  which  they  might  disapprove  on 
any  other  ground.  But  the  supreme  court, 
beginning  with  the  case  of  the  Abilene  Cotton 
Oil  Company  (204  U.  S.),  down  through  a 
long  series  of  decisions,  practically  declared 
that  the  courts  have  no  right  to  interfere 
with  the  exercise  by  the  commission  of  the 
powers  conferred  upon  it  by  Congress,  so 
long  as  the  commission  does  not  overstep  the 
limits  of  its  jurisdiction.  It  was  therefore 

«  Sect.  I. 


THE  UNITED  STATES  83 

provided  that  the  commerce  court  "  shall 
have  the  jurisdiction  now  possessed  by  the 
circuit  courts  of  the  United  States  and  the 
judges  thereof"  in  the  class  of  cases  speci- 
fied.49 

That  the  commerce  court  might  by  reason 
of  this  jurisdiction  take  cognizance  of  ap- 
peals against  the  enforcement  of  "positive" 
orders  of  the  commission  was  plain.  The 
act  of  June  29,  1909  (34  Stat.  L.,  584),  made 
the  orders  of  the  commission  self-executing 
or  self-enforcing.  The  failure,  neglect,  or 
refusal  to  obey  them  within  the  time  limit 
thereof  was  made  punishable  by  heavy  pen- 
alties. A  method  for  annulling  them,  inas- 
much as  the  commission  was  not  a  court,  was 
under  the  Constitution  necessary.  He  against 
whom  the  order  ran  was  entitled  to  his  day 
in  court.  The  interests  of  the  carrier  were 
safeguarded.  But  it  is  to  the  interest  of  the 
shipper  that  opportunity  be  given  for  the 
judicial  review  of  the  "negative"  orders  of 
the  commission,  and  it  was  in  the  attempt  to 
enlarge  its  jurisdiction  so  that  it  might  con- 
sider appeals  from  the  shipper  who  had  been 

«  Sect.  I. 


84  JUDICIAL  TENURE  IN 

denied  relief  that  the  commerce  court  met  its 

doom. 

The  great  case  in  which  a  shipper  denied 
relief  at  the  hands  of  the  interstate  com- 
merce commission  sought  redress  from  the 
commerce  court  was  that  of  the  Procter  and 
Gamble  Company  v.  United  States.  The 
facts  showed  that  on  February  25,  1910,  the 
Cincinnati,  Hamilton  and  Dayton  Railway 
Company  and  other  carriers  had  filed  with 
the  commission  separate  tariffs  all  charging 
demurrage  on  private  cars  whether  on  their 
own  or  on  private  tracks.  The  justice  of  this 
ruling  is  patent,  as  otherwise  the  way  would 
have  been  open  for  collusion  between  the 
railroads  and  big  shippers  and  great  injury 
might  have  resulted  to  the  smaller  shipper 
unable  to  provide  himself  with  private  cars. 
But  the  Procter  and  Gamble  Company  com- 
plained that  the  rule  was  unjust  and  unrea- 
sonable in  that  it  deprived  them  of  the  right 
to  use  their  private  tank  cars  upon  private 
tracks  for  their  own  purposes  without  paying 
demurrage  charges,  although  the  cars  had 
been  delivered  to  them  and  had  ceased  to  be 
engaged  in  railroad  service  but  still  retained 
their  cargo. 


THE  UNITED  STATES  85 

The  interstate  commerce  commission  dis- 
missed the  complaint  and  the  Procter  and 
Gamble  Company  appealed  to  the  commerce 
court.  Their  contention  was  opposed  by  the 
government  on  two  grounds:  first,  that  the 
commerce  court  had  no  jurisdiction  to  annul 
a  "negative"  order  of  the  commission;  and, 
second,  that  the  order  was  a  proper  one.  The 
commerce  court  held  that  it  had  jurisdiction 
to  hear  the  appeal,  but  that  the  decision  of 
the  commission  was  fair.50  When  the  case 
was  carried  to  the  United  States  Supreme 
Court,  however,  that  tribunal  held  that  it  need 
not  pass  on  the  legality  of  the  order  of  the 
commission  since  under  the  law  as  it  now 
stood,  the  commerce  court  had  no  jurisdic- 
tion to  hear  an  appeal  by  a  shipper  to  whom 
the  commission  had  denied  relief.51  Under 
the  doctrine  laid  down  in  this  case,  the  su- 
preme court  dismissed  the  appeal  in  two 
similar  cases,  Hooker  v.  Knapp  and  the 
Eagle  White  Lead  Company  v.  Interstate 
Commerce  Commission.52  By  reason  of  the 
same  decision  the  commerce  court  was 

BO  Commerce  Court  Cases,  No.  9. 

51  225  U.  S.  282. 

52  Ibid.,  302. 


86  JUDICIAL  TENURE  IN 

obliged  to  dismiss  nine  cases  for  want  of 

jurisdiction.53 

The  twelve  cases  thus  dismissed  consti- 
tuted one-sixth  of  all  the  cases  filed  in  or 
transferred  to  the  commerce  court.  The 
elimination  of  this  great  number  of  cases 
from  the  docket  and  the  limitation  of  its 
jurisdiction  to  appeals  from  "  positive " 
orders  of  the  commission  raised  grave  doubts 
as  to  the  usefulness  of  such  a  tribunal. 

While  this  phase  of  the  question  was  under 
discussion,  evidence  was  presented  against 
Judge  Archbald  which,  if  proved,  would  in- 
dicate that  not  only  was  this  member  of  the 
court  pro-railroad  in  his  attitude  but  guilty 
of  such  judicial  misconduct  as  has  seldom 
characterized  any  federal  judge.54  This  un- 
questionably brought  upon  the  entire  com- 
merce court  the  stigma  of  disrepute  and  con- 
tributed to  increase  its  unpopularity  through- 
out the  country.  Memorials  were  received  in 
Congress  from  the  Nevada  Railroad  Com- 
mission urging  the  abolition  of  the  tribunal 
as  an  unnecessary  institution  while  the  State 
legislature  of  Arizona  expressed  the  belief 

53  Commerce  Court  Cases,  p.  50. 
64  Infra,  p.  145. 


THE  UNITED  STATES  87 

that  "the  court  was  being  used  by  the  rail- 
road corporations  for  the  purpose  of  block- 
ing the  work  of  the  interstate  commerce 
commission/'55 

Of  course,  it  was  within  the  power  of  Con- 
gress to  enlarge  the  scope  of  the  authority 
of  the  commerce  court  by  giving  to  it  juris- 
diction over  appeals  by  the  shipper  as  well 
as  by  the  carrier.  This  was  suggested  in  an 
amendment  in  1912  wherein  it  was  proposed 
to  include  within  the  power  of  the  commerce 
court  jurisdiction  "to  review,  in  the  same 
manner  as  in  cases  wherein  affirmative  orders 
have  been  made,  all  errors  of  law  in  cases 
wherein  the  Interstate  Commerce  Commis- 
sion has  made  a  final  refusal  to  grant,  in 
whole  or  in  part,  the  relief  sought  in  any 
proceeding  before  it."50  Thus  while  the 
court  would  have  had  no  authority  to  review 
the  findings  of  fact  established  by  the  com- 
mission, it  would  in  all  cases  have  had  the 
power  to  mark  out  the  law  as  applied  to  par- 
ticular facts  and  to  certify  the  law  in  the 
case  to  the  commission  for  its  guidance  in 
further  proceedings.  But  such  was  the  feel- 

55  Cong.  Record,  62d  Cong.,  2d  Seas.,  pp.  450,  6993. 
5«  62d  Cong.,  2d  Sess.,  H.  Eep.  1012. 


88  JUDICIAL  TENURE  IN 

ing  with  regard  to  the  tribunal  that  any 
proposition  to  increase  its  power  received 
scant  consideration. 

The  movement  to  abolish  the  commerce 
court  met  with  success  in  the  House  of  Repre- 
sentatives, but  when  the  measure  was  sub- 
mitted to  the  Senate  a  sharp  contest  was 
precipitated  over  the  clause  providing  for 
the  destruction  of  the  judgeships.  This 
proposition  was  condemned  by  President 
Taft  as  scarcely  less  objectionable  as  a  means 
of  abridging  the  judicial  tenure  of  office  than 
the  popular  recall.57  When  the  final  confer- 
ence agreement  between  the  two  houses  was 
framed,  although  it  definitely  abolished  the 
commerce  court,  the  judges  were  reassigned 
to  service  in  the  circuit  courts,  from  which 
most  of  them  had  been  drawn.  But  the  pro- 
ject was  frustrated  by  the  veto  of  President 
Taft,  who  came  to  the  defence  of  the  court 
maintaining  that  it  was  a  necessary  institu- 
tion and  one  calculated  to  expedite  business.58 

Hostility  to  the  judges  of  the  commerce 
court  subsided  no  less  than  the  determination 
to  destroy  the  tribunal  itself.  When  in  the 

s?  Cong.  Record,  62d  Cong.,  2d  Sess.,  p.  11900. 
id.,  p.  11908. 


THE  UNITED  STATES  89 

autumn  of  1913  the  abolishment  of  the  court 
was  again  brought  forward  in  Congress  as 
a  "  rider "  to  the  urgent  deficiency  bill,  an 
amendment  was  early  added  depriving  its 
four  remaining  judges  of  their  commissions.59 
Little  opposition  to  the  proposition  to  abolish 
the  judgeships  was  encountered  in  the  House 
of  Bepresentatives,  but  in  the  Senate  a  de- 
bate on  the  subject  scarcely  less  notable  than 
that  of  1802  arose. 

The  arguments  in  the  Senate  debate  quickly 
turned  upon  the  constitutional  power  of 
Congress  to  abridge  the  tenure  of  judges  of 
the  inferior  courts  commissioned  to  hold 
office  during  good  behavior.  It  was  pointed 
out  by  Mr.  Lewis  that  the  House  had  appar- 
ently expressed  the  wish  of  the  people  in 
abolishing  the  court  and  it  only  remained  for 
the  Senate  to  settle  what  should  be  the  dis- 
position of  the  judges.60  Senator  Nelson  ably 
argued  that  since  the  act  creating  the  com- 
merce court  provided  for  the  appointment  of 
five  additional  circuit  judges  who  might, 

59  Judge  Archbald  had  been  removed  from  office  as  a 
result  of  conviction  by  the  Senate  upon  the  articles  of  im- 
peachment on  January  13,  1913. 

eo  Cong.  Record,  62d  Cong.,  2d  Sess.,  p.  5958. 


90  JUDICIAL  TENURE  IN 

from  time  to  time,  be  assigned  to  duty  on  this 
tribunal  or  upon  the  circuit  courts  at  the 
discretion  of  the  chief  justice,  the  judges  thus 
created  were  upon  the  same  footing  as  other 
circuit  judges.  It  might  be  proper  for  Con- 
gress to  abolish  the  commerce  court  but  the 
judges  would  nevertheless  remain  in  the  en- 
joyment of  their  commissions.61  This  the  bill 
recognized;  and  to  secure  the  elimination  of 
the  judges  as  well  as  the  annihilation  of  the 
court,  he  said,  it  had  been  necessary  to  in- 
clude as  a  part  of  the  measure  the  amend- 
ment proposed  by  Mr.  Bartlett  in  the  House. 
The  leading  argument  for  the  abolition  of 
the  judgeships  was  undertaken  by  Senator 
Hoke  Smith,  who  followed  quite  closely  the 
majority  view  in  the  debates  of  1802.  He 
went  even  further,  however,  insisting  that  it 
was  within  the  power  of  Congress  to  abolish 
particular  offices  thereby  legislating  out  of 
office  particular  judges,  whenever  such  legis- 
lation might  be  necessary,  without  abolishing 
the  entire  class  of  courts  to  which  the  par- 
ticular one  might  belong.02  But  a  few  well- 
directed  questions  from  Senators  Borah  and 

01  Cong.  Record,  62d  Cong.,  2d  Sess.,  p.  5954. 
«2lbid.,  p.  5955. 


THE  UNITED  STATES  91 

Shields  shattered  the  arguments  of  Hoke 
Smith  into  fragments  of  absurdity.  Mr. 
Shields  brought  out  the  fact  that  the  judges 
were  judges  of  the  circuit  courts  and  not  of 
the  commerce  court,  and  asked  if  their  tenure 
of  office  was  in  any  way  dependent  upon  the 
existence  of  the  latter  tribunal.  Mr.  Smith 
declared  that  it  was  not.  "Then,"  said  Mr. 
Shields,  "is  not  a  statute  which  removes 
them  from  office  another  mode  of  removing 
the  judges  when  the  Constitution  provides 
that  they  can  be  removed  only  by  impeach- 
ment?"63 

Mr.  Smith  was  no  longer  able  to  command 
serious  consideration  for  his  contention,  and 
concluded  by  insisting  that 
There  is  nothing  in  the  Constitution  that  limits 
the  power  of  Congress  to  increase  or  decrease  the 
number  of  judges  of  the  inferior  courts.  I  take 
issue  with  the  proposition  that  having  once  in- 
creased their  number  they  must  remain  increased 
during  the  life  of  the  incumbents.64 

To  this  Mr.  Borah  sarcastically  rejoined : 
The  country  will  be  glad  to  know,  in  view  of  this 

urgent  propaganda  for  the  recall  of  judges,  that 
es  Cong.  Kecord,  62d  Cong.,  2d  Sess.,  p.  5956. 
e*  Ibid.,  p.  5956. 


92  JUDICIAL  TENURE  IN 

they  need  not  wait  for  the  slow  process  of  impeach- 
ment or  recall,  but  can  call -upon  their  Senators 
and  Representatives  to  eliminate  any  man  from  the 
bench  that  they  want  off  the  bench.  They  can 
simply  abolish  his  circuit,  get  him  out,  and  re- 
create his  circuit.65 

It  became  apparent  that  while  the  Senate 
felt  that  the  commerce  court  should  be  abol- 
ished, there  was  by  no  means  a  majority  of 
the  members  who  favored  the  destruction  of 
the  judgeships.  Mr.  Walsh  thereupon  came 
forward  witb  an  amendment  providing  that, 
although  the  court  should  no  longer  exist : 

Nothing  .  .  .  shall  be  deemed  to  affect  the  tenure 
of  any  of  the  judges  now  acting  as  circuit  judges 
by  appointment  under  the  terms  of  said  act,  but 
such  judges  shall  continue  to  act  under  assignment 
as  the  said  act  provides,  as  judges  of  the  district 
courts  and  circuit  courts  of  appeals;  and  in  the 
event  of  and  on  the  death,  resignation,  or  removal 
from  office  of  any  of  such  judges  his  office  is  hereby 
abolished  and  no  successor  to  him  shall  be  ap- 
pointed.66 

This  proposition  commanded  great  respect, 
being  predicated  on  the  theory  that  "al- 
though Congress  has  the  power  to  abolish  any 

es  Cong.  Kecord,  62d  Cong.,  2d  Sess.,  p.  5957. 
«« Ibid.,  p.  5958. 


THE  UNITED  STATES  93 

court  which  it  creates,  it  must  do  so  in  sub- 
ordination to  the  other  provision  of  the  Con- 
stitution, which  provides  that  the  judges  of 
the  Supreme  and  the  inferior  courts  as 
well  shall  hold  their  offices  during  good 
behavior. ' m 

Some  further  argument  for  the  abolition 
of  the  judgeships  was  made  by  Senator 
Bacon  on  the  ground  that  since  these  judges 
were  not  at  the  time  of  their  appointment 
assigned  to  particular  circuits  but  were  in 
the  nature  of  "  floaters, "  an  entirely  new 
jurisdiction  had  been  created,  and  that  when 
that  jurisdiction  was  itself  abolished  the 
judges  would  go  with  it.68  But  although  this 
line  of  argument  was  followed  up  by  Hoke 
Smith,  the  sentiment  of  the  majority  of  the 
members  of  the  Senate  was  distinctly  op- 
posed to  any  such  view. 

The  view  which  finally  prevailed  in  the 
Senate  was  well  stated  in  the  closing  hours 
of  the  debate  by  Mr.  0 'Gorman.  After  de- 
claring that  he  entertained  no  doubt  as  to  the 
existence  of  a  power  in  Congress  to  abolish 
any  inferior  court  and  thereby  legislate  out 

67  Cong.  Record,  62d  Cong.,  2d  Sess.,  p.  5959. 
«s  Ibid.,  p.  5961. 


94  JUDICIAL  TENURE  IN 

of  office  the  judge  presiding  therein,  he  gave 
his  support  to  the  amendment  proposed  by 
Mr.  Walsh,  because  he  conceived 

Of  no  greater  injury  that  could  be  done  to  the 
judicial  department  of  the  country  than  to  have 
it  adopted  as  the  policy  of  Congress  to  use  this 
great  constitutional  prerogative  as  a  substitute  for 
impeachment.  It  would  be  very  unfair  .  .  .  after 
four  or  five  lawyers  have  accepted  a  commission 
from  the  President  of  the  United  States  to  take 
what  they  had  a  right  to  understand  was  a  life 
position,  subject  to  good  behavior  .  .  .  that  within 
a  few  years  the  Congress  for  the  first  time  in  111 
years  should  undertake  to  exercise  a  power  con- 
fessedly used  as  a  substitute  for  the  impeachment 
process.  If  any  of  these  judges  have  been  found 
untrue  or  unworthy,  we  have  a  familiar  procedure 
established  by  the  Constitution  for  removing  them. 
That  they  have  not  been  guilty  of  offense  justifying 
impeachment  is  clear  from  the  circumstance  that 
at  no  time  has  such  a  proceeding  been  threatened 
against  them.09 

IV 

Whether  Congress  can  be  said  to  have 
abandoned  as  unsound  the  precedent  of  1802 
is  difficult  to  determine.  The  hostility  to  the 

o»  Cong.  Record,  62d  Cong.,  2d  Sess.,  p.  5973. 


THE  UNITED  STATES  95 

judges  of  the  commerce  court,  so  apparent  in 
the  beginning,  changed  to  a  feeling  of  sym- 
pathy at  the  conclusion  of  the  debates.  Since 
most  of  the  judges  had  reached  their  present 
positions  because  of  promotions  from  the 
lower  courts,  it  would  be  unjust,  it  was 
agreed,  to  sweep  away  the  rewrards  of  a  life- 
time of  service  upon  the  federal  judiciary. 
At  the  same  time  an  abundance  of  evidence 
was  produced  to  show  the  need  for  these 
judges  in  a  number  of  the  circuit  courts  where 
the  amount  of  business  before  the  court 
threatened  to  overwhelm  the  judges  already 
on  the  bench.  But  probably  the  most  potent 
factor  in  determining  the  continuance  of  the 
judges  was  the  attitude  of  the  President. 
Mr.  Taft  in  his  turn  gave  unmistakable  evi- 
dence of  his  feeling.  While  Mr.  Wilson 
avoided  all  official  utterance  as  to  his  view  of 
the  matter,  it  was  understood  that  he  was 
opposed  to  the  proposition  to  abolish  the 
judgeships  and  would  resist  any  attempt  on 
the  part  of  Congress  to  carry  it  out.  The 
reception  accorded  the  Senators  who  held  to 
the  construction  laid  down  by  the  majority  in 
1802  would  indicate  that  the  precedent  was 
not  in  high  esteem.  But  in  the  absence  of 


96  JUDICIAL  TENURE  IN 

judicial  decision  on  the  point  any  future  Con- 
gress is  free  to  ignore  the  action  of  1913  and 
to  rehabilitate  the  construction  of  the  Jeffer- 
sonian  faction. 

The  distinction  between  the  judicial  office 
and  the  judge  has  received  consideration  in 
numerous  cases  before  the  courts.  The  power 
of  Congress  to  determine  the  jurisdiction  of 
the  inferior  courts  has  been  universally  ad- 
mitted and  has  been  granted  by  the  United 
States  Supreme  Court.  The  court  has  de- 
clared that  "Congress  have  constitutional 
authority  to  establish,  from  time  to  time, 
such  inferior  tribunals  as  they  may  think 
proper,  and  to  transfer  a  cause  from  one  such 
tribunal  to  another.  In  this  last  particular 
there  are  no  words  in  the  Constitution  to  pro- 
hibit or  restrain  the  exercise  of  legislative 
power.  "70  That  Congress  has  the  power  to 
abolish  any  inferior  court  after  it  has  been 
created  is  by  no  means  so  well  established. 
A  decision  of  the  United  States  District  Court 
for  Massachusetts  in  1887  maintained  that 
"the  original  jurisdiction  of  the  Supreme 
Court  of  the  United  States  is  conferred  by 
the  Constitution,  and  Congress  has  no  power 

TO  Stuart  v.  Laird,  I  Cranch  299. 


THE  UNITED  STATES  97 

to  enlarge  or  restrict  it.  But  the  jurisdiction 
of  the  inferior  courts  is  derived  from  and  is 
subject  to  the  absolute  control  of  Congress, 
and  may  be  changed  or  taken  away  at  pleas- 
ure. Existing  courts  may  be  abolished,  and 
their  jurisdiction,  and  all  cases  pending  in 
them,  whatever  their  condition,  transferred 
to  other  existing  courts,  or  to  new  courts."71 
Nevertheless,  it  must  be  observed  that  Con- 
gress is  obliged  to  make  adequate  provision 
for  the  judicial  power.  Since  the  defeat  of 
the  States '  rights  party  in  the  debates  on  the 
judiciary  act  of  1789,  both  in  theory  and 
practice,  Congress  has  continued  the  design 
of  a  judiciary  system  commensurate  to  the 
other  departments  of  government.  When- 
ever courts  have  been  abolished  others  have 
been  established  equally  competent  to  the 
exercise  of  the  judicial  power.  This  has  been 
the  course  of  Congress  as  illustrated  by  the 
repealing  act  of  1802  which  restored  the 
courts  as  they  had  existed  prior  to  February 
13,  1801,  and  in  the  judiciary  code  of  March 
3,  1911,  by  which  the  circuit  courts  were 
abolished  but  the  district  courts  at  the  same 

7i  United  States  v.  Haynes,  29  Fed.  Eep.  696. 


98  JUDICIAL  TENURE  IN 

moment  were  equipped  with  equal  compe- 
tency to  exercise  the  judicial  power.72 

Never  has  Congress,  except  in  the  heat  of 
partisan  conflict,  invaded  the  independence 
of  the  federal  judiciary  to  the  extent  of  de- 
priving judges  of  their  commissions  other- 
wise than  by  the  constitutional  procedure  of 
impeachment.  The  single  assertion  by  Con- 
gress of  this  power  has  been  justly  con- 
demned as  an  encroachment  upon  the  judicial 
power  which  is  fraught  with  the  greatest 
danger  to  this  department  of  government. 
It  is  peculiarly  unfortunate  that  no  judicial 
settlement  of  this  question  has  been  attained. 
Nevertheless,  Chief  Justice  Marshall  in  pri- 
vate commented  upon  the  repealing  act  of 
1802,  considering  it  to  be 

Operative  in  depriving  the  judges  of  all  power  de- 
prived under  the  act  repealed.  But  the  office  re- 
mains which  is  a  mere  capacity,  without  a  new 
appointment  to  receive  and  exercise  any  new  judi- 
cial powers  which  the  Legislature  may  confer.73 

The  reasonableness  of  this  view  cannot  but 
be  apparent.  The  creation  of  a  judicial 

72  For   an   interesting   argument   on   this   point,   see   62d 
Cong.,  2d  Sess.,  Senate  Doc.  443. 

73  Hamilton  MSS.,  Apr.  25,  1802. 


THE  UNITED  STATES  99 

branch  of  government  is  effected  by  the  Con- 
stitution and  the  guarantees  which  shall 
secure  its  officers  are  set  forth  with  equal 
precision.  But  the  framers  of  our  govern- 
ment well  knew  that  they  were  unequal  to 
the  task  of  prescribing  the  tribunals  through 
which  the  judicial  power  should  function. 
It  was  recognized  that  changing  circum- 
stances would  render  unsafe  any  attempt  to 
describe  with  a  rigidity  demanded  by  a  writ- 
ten constitution  a  system  of  courts  which 
should  be  unalterable.  They  wisely  vested 
in  Congress  the  power  to  erect  from  time  to 
time  as  conditions  might  require  inferior 
tribunals  and  gave  to  that  body  the  authority 
to  determine  their  jurisdiction. 

The  necessity  which  compelled  this  dele- 
gation of  power  it  cannot  be  claimed  enables 
Congress  to  encroach  upon  the  constitutional 
prerogatives  of  the  judiciary.  That  depart- 
ment is  admitted  to  be  a  co-ordinate  branch 
of  the  government.  It  stands  upon  the  firm 
foundation  of  the  Constitution  and  is  in  no 
way  subject  to  control  by  Congress  save  as 
emergencies  arise  necessitating  the  creation 
of  new  courts  or  the  alteration  of  those  ex- 
isting. Then  Congress  may,  by  appropriate 


100  JUDICIAL  TENURE  IN 

legislation,  satisfy  the  demands  of  circum- 
stances, but  only  in  subordination  to  such 
other  clauses  of  the  Constitution  as  safe- 
guard the  judicial  branch  of  government. 
By  no  other  view  can  Congress  exercise  its 
authority  to  deal  with  the  inferior  courts  of 
the  United  States  and  at  the  same  time  com- 
ply with  the  imperative  mandate  of  the  Con- 
stitution that  judges  shall  hold  their  offices 
during  good  behavior. 


CHAPTER  III  -  ,v  -     , « 
THE  REMOVAL  OF  JUDGES 


In  order  that  judicial  misbehavior  may  be 
effectively  dealt  with  a  power  of  removal 
must  exist  somewhere,  and  to  this  end  the 
framers  of  the  federal  Constitution  seized 
upon  the  procedure  of  impeachment  and  con- 
viction as  the  only  remedy  consistent  with 
the  necessary  independence  of  the  judges. 
The  idea  was  borrowed  directly  from  the 
revolutionary  State  constitutions  where  the 
form  of  removal  on  impeachment  and  convic- 
tion was  in  high  favor.  Nor  is  this  strange 
when  we  consider  how  strongly  the  colonists 
had  contended  for  the  right  of  impeachment 
by  their  legislative  assemblies.  John  Adams 
had  insisted  upon  the  power  and  practice  of 
impeachment  as  essential  to  every  free  gov- 
ernment.1 But  the  proprietary  government 
of  Pennsylvania  seems  to  have  been  the  only 
one  in  which  impeachments  were  provided.2 

1  Adams :  Works,  ix,  pp.  236-241 . 

2  Poorer  Charters  and  Constitutions,  p.  1521. 


102  JUDICIAL  TENURE  IN 

The  charters  of  the  other  colonies  were  silent 
on  thets.ubjeet,  while  in  the  royal  colonies  the 
right  JiaS*  .been  expressly  denied  by  the 
crown.18  :  /.  '  '; 

In  nuineroils  conflicts  with  the  home  gov- 
ernment the  colonists  were  repeatedly  de- 
feated in  their  efforts  to  secure  a  power  of 
removal  in  the  hands  of  their  assemblies.4 
The  question  remained  for  the  clash  of  arms 
to  settle,  but  as  the  colonists  prepared  to 
separate  from  the  mother  country,  one  of  the 
great  injustices  under  which  they  felt  they 
languished  was  the  denial  of  the  right  to  im- 
peach and  remove  public  officers  whom  they 
considered  unfit.  It  is  true  that  "the  bad  old 
days,  when  judges  did  the  bidding  of  the 
King,  were  much  more  vivid  to  them  than  to 
us/'  It  is  true  that  "the  fathers  of  some  of 
these  men — the  grandfathers  of  all — could 
recall  Jeffreys  and  the  Bloody  Assizes." 
But  it  was  these  men  themselves  who  had 
clamored  in  vain  for  the  right  of  impeach- 
ment before  their  colonial  assemblies.  What 
had  happened  under  the  last  Stuart  king  was 
dimmed  by  long  years ;  what  they  had  sought 

3  Foster  on  the  Constitution,  p.  634. 
«  Ibid.,  pp.  634-637. 


THE  UNITED  STATES  103 

and  had  been  refused  was  clear  to  the  mind 
of  everyone.  The  thought  of  the  revolution- 
ary patriots  was  not  only  the  creation  of  an 
independent  judiciary  but  firm  control  of 
such  judges  as  were  established. 

I 

While  the  members  of  the  federal  conven- 
tion rejected  the  English  mode  of  effecting 
judicial  removals  by  legislative  address  as 
being  likely  to  weaken  the  independence  of 
the  courts,  at  no  time  did  they  suggest  that 
the  judges  should  not  be  punished  for  mis- 
behavior in  the  same  way  as  other  civil 
officers  of  the  United  States.5  It  is  true,  the 
mode  of  removal  on  impeachment  and  con- 
viction was  discussed  in  the  convention  in 
connection  with  the  executive.  But  its  oppo- 
nents held  that  this  method  of  removal  was 
proper  only  in  the  case  of  officers  appointed 
during  good  behavior,  and  in  this  way  the 
judges  were  brought  into  consideration,  a 
general  agreement  being  reached  that  in 
their  case  impeachments  were  proper  to 
secure  good  behavior.6 

s  Supra,  p.  30. 

°  Farrand :  ii,  p.  64. 


104  JUDICIAL  TENURE  IN 

The  first  motion  in  the  convention  to  pro- 
vide for  removal  on  impeachment  and  con- 
viction came  from  Mr.  Williamson,  who  ad- 
vocated its  application  to  the  executive  for 
' '  malpractice  or  neglect  of  duty. ' "  This  was 
favorably  received  and  was  embodied  in  the 
report  of  the  committee.  When  the  matter 
came  up  for  debate  on  July  20,  the  idea  was 
accepted  by  a  vote  of  eight  to  two,  Massa- 
chusetts and  South  Carolina  voting  in  the 
negative,  and  was  referred  to  a  committee 
of  which  Mr.  Brearly  was  chairman.  When 
this  committee  reported  on  September  4,  the 
causes  for  impeachment  were  limited  to 
treason  and  bribery.8  To  this  Colonel  Mason 
objected  as  being  insufficient,  and  moved  to 
add  after  the  word  "bribery"  the  words  "or 
maladministration. ' '  Madison  thought  that 
"so  vague  a  term  would  be  equivalent  to  a 
tenure  during  the  pleasure  of  the  Senate "; 
whereupon  Mason  withdrew  his  suggestion 
and  substituted  "other  high  crimes  and  mis- 
demeanors against  the  State. ' '  On  the  ques- 
tion thus  altered,  eight  states  voted  in  the 

i  Farrand :  i,  p.  88. 
8  Ibid.,  ii,  p.  69. 


THE  UNITED  STATES  105 

affirmative,  and  the  clause  was  accepted.9 
"State"  was  later  amended  to  read  "United 
States,"  but  this  was  dropped  by  the  Com- 
mittee on  Style  and  the  clause  was  finally 
drawn  up  in  its  present  form. 

The  Constitution  provides  that  i  i  the  Presi- 
dent, Vice-President,  and  all  other  civil  offi- 
cers of  the  United  States,  shall  be  removed 
from  office  on  impeachment  for,  and  convic- 
tion of  treason,  bribery,  or  other  high  crimes 
and  misdemeanors."10  Most  of  the  States 
have  drafted  their  constitutional  provisions 
on  this  subject  in  similar  language.  As  there 
is  no  enumeration  of  offenses  comprised 
under  the  last  two  categories,  no  little  diffi- 
culty has  been  experienced  in  defining  of- 
fenses in  such  a  way  that  they  fall  within  the 
meaning  of  the  constitution  provisions.  But 
impeachable  offenses  were  not  defined  in 
England,  and  it  was  not  the  intention  that 
the  Constitution  should  attempt  an  enumera- 
tion of  crimes  or  offenses  for  which  an  im- 
peachment would  lie.  Treason  and  bribery 
have  always  been  offenses  whose  nature  was 
clearly  understood.  Other  high  crimes  and 

9  Farrand :  ii,  p.  495. 

10  Art.  ii,  Sect.  4. 


106  JUDICIAL  TENURE  IN 

misdemeanors  which  might  be  made  causes 
for  the  impeachment  of  civil  officers  were 
those  which  embraced  any  misbehavior  while 
in  office.  Madison,  whose  objection  led  to  the 
insertion  of  the  more  definite  phrase  "high 
crimes  and  misdemeanors, "  was  the  strong- 
est advocate  of  a  broad  construction  of  the 
impeachment  power.  He  argued  that  "in- 
capacity, negligence,  or  perfidy  of  the  Chief 
Magistrate "  should  be  ground  for  impeach- 
ment.11 Again,  in  discussing  the  President's 
power  of  removal,  he  maintained  that  the 
wanton  removal  from  office  of  meritorious 
officers  would  be  an  act  of  maladministration, 
and  would  render  the  President  liable  to  im- 
peachment.12 Hamilton  thought  the  proceed- 
ing could  "never  be  tied  down  by  such  strict 
rules,  either  in  the  delineation  of  the  offense 
by  the  prosecutors,  or  in  the  construction  of 
it  by  the  judges,  as  in  common  cases  serve  to 
limit  the  discretion  of  the  courts  in  favor  of 
personal  security.  "13 

The  convention  believed  the  remedy  of  im- 
peachment and  conviction  to  be  adequate  for 

11  Elliot :  v,  p.  341. 

12  Ibid.,  iv,  p.  375. 
is  Federalist,  Ixv. 


THE  UNITED  STATES  107 

the  removal  of  all  unfit  public  officials,  so  that 
in  its  application  to  the  judiciary  the  im- 
peachment clause  must  be  construed  with  that 
clause  of  the  Constitution  which  guarantees 
to  the  judges  a  tenure  during  good  behavior. 
It  was  intended  that  trial  upon  impeachment 
should  form  a  "national  inquest  into  the  con- 
duct of  public  men."  The  subjects  of  its 
jurisdiction  were  to  be  those  which  proceeded 
from  the  misconduct  of  public  officers.  It 
was  not  the  province  of  an  impeachment  to 
mete  out  justice  for  criminal  acts.  It  was  to 
be  its  function  to  protect  the  people  by  re- 
moving from  office  and  imposing  perpetual 
disqualification  from  holding  office  upon  such 
men  as  showed  themselves  unworthy  of  pub- 
lic trust.  For  that  reason  it  was  provided 
that  the  chastisement  of  a  misbehaving  pub- 
lic official  should  not  cease  when  he  was 
stripped  of  his  honors,  but  that  he  might  be 
pursued  and  punished  for  crime  in  the  ordi- 
nary course  of  law,  and  without  being  twice 
placed  in  jeopardy.  For  the  same  reason  the 
trial  of  impeachments  was  vested  in  a  legis- 
lative body  rather  than  in  the  courts,  as  the 
latter  might  be  called  upon  to  try  the  offender 
after  he  had  been  removed  from  office. 


108  JUDICIAL  TENURE  IN 

The  use  of  the  impeachment  power  as  a 
check  upon  the  courts  in  the  exercise  of  the 
doctrine  of  judicial  review  was  early  advo- 
cated by  some  "high-fliers  in  Congress  and 
out. ' '  After  the  decision  of  the  circuit  court 
for  Pennsylvania  in  the  first  Hayburn  case, 
some  declared  that  only  a  general  convention 
is  adequate  to  pass  upon  the  constitutionality 
of  an  enactment.  One  contemporary  editor 
writes : 

Never  was  the  word  "impeachment"  so  hack- 
neyed as  it  has  been  since  the  spirited  sentence 
passed  by  our  judges  on  an  unconstitutional  law. 
The  high-fliers,  in  and  out  of  Congress,  and  the  very 
humblest  of  their  humble  retainers,  talk  of  nothing 
but  impeachment!  impeachment!  impeachment!  as 
if  forsooth  Congress  were  wrapped  up  in  the  cloak 
of  infallibility,  which  has  been  torn  from  the 
shoulders  of  the  Pope;  and  that  it  was  damnable 
heresy  and  sacrilege  to  doubt  the  constitutional 
orthodoxy  of  any  decision  of  theirs,  once  written 
on  calf  skin !  But  if  a  Secretary  of  War  can  sus- 
pend or  reverse  the  decision  of  the  Circuit  Judges, 
why  may  not  a  drill  sergeant  or  a  black  drummer 
reverse  the  decisions  of  a  jury?  "Why  not  abolish 
at  once  all  our  courts,  except  the  court  martial? 
and  burn  all  our  laws,  except  the  articles  of 
war  .  .  ? 


THE  UNITED  STATES  109 

But  when  those  impeachment  mongers  are  asked 
how  any  law  is  to  be  declared  unconstitutional, 
they  tell  us  that  nothing  less  than  a  general  con- 
vention is  adequate  to  pass  sentence  on  it;  as  if 
a  general  convention  could  be  assembled  with  as 
much  ease  as  a  party  of  stock  jobbers.14 

But  these  radicals  gained  nothing  from  their 
outcries,  and  the  power  of  the  courts  to  set 
aside  as  null  and  void  acts  of  legislation  in 
contravention  of  the  fundamental  law  became 
still  more  firmly  established.15 

II 

That  the  impeachment  power  might  be  used 
as  a  weapon  of  partisan  warfare  does  not 
seem  to  have  occurred  to  the  members  of  the 
federal  convention.  But  as  party  spirit 
developed,  the  latent  possibilities  in  the  im- 
peachment proceeding  as  a  means  of  destroy- 
ing political  opponents  became  recognized. 
Jefferson  expressed  his  fear  that  the  Federa- 
lists might  resort  to  such  means,  declaring : 

I  see  nothing  in  the  mode  of  proceeding  by  im- 
peachment but  the  most  formidable  weapon  for  the 

nBache's  General  Advertiser,  Apr.  20,  1792.  A  similar 
paragraph  appears  in  Freneau's  National  Gazette,  Apr.  16, 
1792. 

is  Corwin :  Doctrine  of  Judicial  Review,  p.  51. 


110  JUDICIAL  TENURE  IN 

purpose  of  a  dominant  faction  that  ever  was  con- 
trived. It  would  be  the  most  effectual  one  for 
getting  rid  of  any  man  whom  they  (the  Federalists) 
consider  as  dangerous  to  their  views.  I  know  of 
no  solid  purpose  of  punishment  which  the  courts 
of  law  are  not  equal  to,  and  history  shows  that  in 
England  impeachment  has  been  an  engine  more  of 
passion  than  of  justice.16 

To  prevent  such  perversion  of  the  impeach- 
ment power,  the  amendment  of  the  clause  was 
suggested  in  the  Senate  and  Jefferson  sought 
to  have  juries  introduced  into  trials  on  im- 
peachments.17 

It  remained  for  Jefferson  and  his  partisans 
to  make  use  of  this  "  formidable  weapon "  for 
political  purposes.  The  Eepublicans  having 
become  in  the  elections  of  1800  the  "  domi- 
nant faction,"  the  call  to  battle  with  their 
Federalist  enemies  who  still  were  intrenched 
in  the  stronghold  of  the  judiciary  was 
sounded.  Early  in  1803  Jefferson  directed 
Congress  to  make  the  first  attack  upon  John 
Pickering,  judge  of  the  district  court  for  New 
Hampshire.18  The  move  was  well  understood 
at  the  time  and  was  considered  by  the  Fed- 

16  Madison  MSS.,  Feb.  15,  1798. 
IT  Jefferson  MSS.,  Jan.  25,  1798. 
is  Annals,  7th  Cong.,  2d  Sess.,  p.  460. 


THE  UNITED  STATES  111 

eralists  as  the  beginning  of  a  systematic  at- 
tack upon  the  courts. 

The  business  of  "  judge  breaking"  had  al- 
ready been  carried  far  in  some  of  the  States 
before  it  was  attempted  in  the  federal  judi- 
ciary. In  Pennsylvania,  where  the  Bepubli- 
can  party  had  early  been  successful,  the  im- 
peachment and  removal  of  obnoxious  judges 
had  become  a  party  policy.  A  beginning  was 
made  with  Alexander  Addison  of  the  State 
judiciary,  who  had  aroused  the  democratic 
element  by  his  political  speeches  from  the 
bench.  Petitions  poured  into  the  legislature 
complaining  against  the  administration  of 
justice  in  his  court,  and  his  impeachment  and 
trial  were  ordered  in  1802.  Although  Judge 
Addison  defended  himself  with  great  ability, 
his  conviction  was  easily  secured  and  he  was 
removed  from  office  amid  the  rejoicing  of  the 
Eepublicans.  Thomas  McKean  wrote  Jef- 
ferson that  they  "knew  how  to  get  rid  of 
obnoxious  judges  as  well  as  Congress,"  and 
that  "the  Tories  in  Pennsylvania  were  not 
only  humbled  but  subdued,  since  Federalism 
would  fall  with  Addison  in  the  six  western 
counties."19 

is  Jefferson  MSS.,  Feb.  7,  1803. 


112  JUDICIAL  TENURE  IN 

Elated  with  this  success,  the  Republicans 
determined  to  bring  about  the  impeachment 
of  all  the  members  of  the  supreme  court  of 
Pennsylvania,  except  Judge  Brackenridge 
who  was  of  their  party.  To  secure  a  basis 
for  the  prosecution  of  the  judges,  the  legis- 
lature took  up  a  petition  which  had  been  pre- 
sented to  them  in  February,  1803,  by  one 
Thomas  Passmore,  in  which  he  alleged  that 
he  had  been  arbitrarily  and  unconstitution- 
ally fined  and  imprisoned  for  contempt  of 
court.20  It  was  apparent  to  all,  however,  that 
the  impeachment  was  a  malicious  partisan 
attack  upon  the  Federalist  members  of  the 
court,  and  the  entire  bar  of  the  State  refused 
to  assist  in  the  prosecution.  Moreover,  the 
legislature  had  only  a  few  years  earlier  re- 
fused to  move  in  a  similar  case,  declaring 
that  "an  error  in  judgment  is  no  ground  for 
an  impeachment."21  Because  of  the  flimsy 
grounds  upon  which  the  prosecution  was 
based  there  was  little  difficulty  in  securing 
the  acquittal  of  the  judges,  but  the  legislature 

20  Foster:  op.  cit.,  p.  663;  Trial  of  the  Judges  (Lancas- 
ter, Pa.,  1805). 

21  See  petition  of  Eleazer  Oswald,  Debates  12th  Penn- 
sylvania Assembly,  3d  Sess.,  IV. 


THE  UNITED  STATES  113 

thought  it  wise  to  enact  a  statute  defining 
what  offenses  might  be  punished  as  in  con- 
tempt of  court  in  that  State.22 

The  impeachment  of  judges  from  partisan 
motives  ceased  in  Pennsylvania  after  this  de- 
feat, but  hostility  to  Federalist  officers  did 
not  subside.  As  a  part  of  the  same  move- 
ment two  impeachments  were  undertaken  in 
Ohio  as  late  as  1808.  Two  years  earlier  Cal- 
vin Pease,  a  judge  of  the  circuit  court  of  the 
State,  had  held  that  a  portion  of  the  Ohio  law 
respecting  the  jurisdiction  of  justices  of  the 
peace  was  repugnant  to  the  constitution  of 
the  State  and  of  the  United  States.  This  was 
the  first  decision  in  the  State  which  held  an 
act  of  the  State  legislature  unconstitutional, 
and  was  followed  by  Judges  Tod  and  Hunt- 
ingdon. Great  public  excitement  was  created, 
and  at  the  next  session  of  the  legislature  the 
separate  impeachments  of  Judges  Pease  and 
Tod  were  resolved  upon.  Judge  Hunting- 
don, in  the  meantime,  had  been  elected  gov- 
ernor, and  the  charge  against  him  was  aban- 
doned. Both  judges  were  acquitted,  but  the 

22  Foster :  op.  cit.,  p.  664. 


114  JUDICIAL  TENURE  IN 

legislature  by  a  vote  of  less  than  two-thirds 
proceeded  to  declare  vacant  their  offices.23 

Ill 

While  these  events  were  in  progress  in  the 
States,  the  movement  to  sweep  from  the 
courts  of  the  United  States  all  Federalist  par- 
tisans was  begun.  In  the  first  flush  of  victory 
in  Pennsylvania,  Congress  proceeded  to  vote 
the  impeachment  of  Judge  Pickering.  Presi- 
dent Jefferson  is  reported  to  have  said  to 
a  member  of  the  Senate  that  "impeachment 
was  but  a  clumsy  engine  to  get  rid  of 
judges."24  But  the  Republicans  had  been 
almost  unanimous  during  the  debates  on  the 
repeal  of  the  judiciary  act  of  1801  in  the  belief 
that  no  other  means  of  removal  existed.25 

Judge  Pickering,  to  the  most  superficial 
observer,  presented  a  vulnerable  point  for 
the  Republican  attack.  For  some  time  prior 
to  his  impeachment  it  had  been  known  that 
the  administration  of  justice  in  his  court  was 
subject  to  irregularities,  most  of  which  were 
traceable  to  the  conduct  of  the  judge  himself. 

23  Western  Law  Monthly,  ii,  p.  1. 

2*  Ford:  Writings  of  John  Quincy  Adams,  iii,  p.  117. 

25  Supra,  p.  69. 


THE  UNITED  STATES  115 

An  unfortunate  lapse  from  dignity  during 
October,  1802,  gave  the  House  of  Representa- 
tives the  grounds  on  which  to  base  articles  of 
impeachment.26 

A  case  had  arisen  in  the  district  court  in- 
volving the  libeling  of  a  ship  and  cargo  for 
violation  of  the  customs  regulations.  When 
the  case  came  before  the  court,  Judge  Picker- 
ing ordered  the  vessel  and  goods  to  be  re- 
stored to  the  owner,  but  the  collector  of  the 
port  objected  on  the  ground  that  the  judge 
was  incompetent  and  the  proceeding  irregu- 
lar. When  the  libels  were  again  brought  to 
trial,  the  judge  was  so  drunk  and  spoke  so 
wildly  and  incoherently  that  the  court  was 
thrown  into  an  uproar.  A  postponement  was 
asked,  and  the  judge  replied,  "My  dear,  I 
will  give  you  to  all  eternity/'  He  then 
ordered  the  court  to  be  adjourned  until  nine 
o'clock  the  next  morning,  observing  that  he 
would  "then  be  sober. "2T 

20  The  impeachment  was  at  first  presented  verbally  but 
the  Senate  declined  to  accept  this  as  proper.  They  declared 
that  the  articles  must  be  presented  in  writing  and  that  no 
impeachment  could  be  said  to  exist  until  such  articles  had 
been  prepared.  Annals,  7th  Cong.,  2d  Sess.,  p.  267.  Also 
Annals,  8th  Cong.,  1st  Sess.,  pp.  317-318. 

27  Annals,  8th  Cong.,  1st  Sess.,  p.  339. 


116  JUDICIAL  TENURE  IN 

The  next  day  the  judge  appeared  as  irra- 
tional as  ever.  Before  reaching  the  court- 
house, he  had  declared  his  intention  of  con- 
demning both  ship  and  cargo.  But  when  the 
case  came  up  and  a  few  witnesses  for  the 
claimant  had  been  heard,  the  judge  ordered 
that  both  vessel  and  cargo  be  restored  to  the 
owner  and  a  decree  entered  to  that  effect.  In 
vain  did  the  attorney  for  the  government 
protest  that  only  one  side  had  been  heard; 
the  judge  refused  an  appeal,  and  the  court 
was  adjourned  amid  much  confusion.28 

Articles  of  impeachment  were  voted  rest- 
ing upon  these  facts.  When  the  case  came  up 
for  trial  in  the  Senate  in  January,  1804,  "the 
said  John  Pickering  was  three  times  called 
to  answer  the  articles  of  impeachment  ex- 
hibited against  him  by  the  House  of  Repre- 
sentatives, but  came  not.  Upon  which  a  sug- 
gestion, by  petition,  was  made  to  this  court 
that  said  John  Pickering  was  insane;  and 
Jacob  S.  Pickering,  the  petitioner,  and  son 
to  the  said  John,  requested  to  be  heard  by 
counsel  on  said  suggestion. ' '  This  proposal 
caused  much  perturbation  among  the  Repub- 

28  Annals,  8th  Cong.,  1st  Sess.,  p.  351  et  seq. 

29  Ibid.,  p.  360. 


THE  UNITED  STATES  117 

licans,  and  several  senators  vigorously  op- 
posed hearing  evidence  of  insanity.  John 
Quincy  Adams  declares : 

The  most  persevering  and  determined  opposition 
was  made  against  hearing  evidence  and  counsel  to 
prove  the  man  insane — only  from  fear  that  if  in- 
sanity should  be  proved,  he  could  not  be  convicted 
of  high  crimes  and  misdemeanors  by  acts  of  de- 
cisive madness.  Mr.  Jackson  was  for  hearing  none 
of  these  pretenses  of  insanity;  because  they  might 
prevent  us  getting  rid  of  the  man.  He  said  the 
House  of  Representatives  were  at  that  minute  de- 
bating whether  they  would  not  impeach  another 
judge,  and  by  and  by  Judge  Chase's  friends  would 
come  and  pretend  that  he  was  mad.  Mr.  Breckin- 
ridge  was  for  proceeding  to  trial — hearing  all  the 
proofs  the  managers  of  the  House  might  bring 
forward  of  acts  of  extravagance  and  folly,  and 
afterwards  hear  evidence  of  insanity  in  mitigation. 
The  dilemma  was  between  the  determination  to 
remove  the  man  on  impeachment  for  high  crimes 
and  misdemeanors,  though  he  be  insane,  and  the 
fear  that  the  evidence  of  this  insanity,  and  the 
argument  of  counsel  on  its  legal  operation,  would 
affect  the  popularity  of  the  measure.30 

The  trial  of  Judge  Pickering  was  marked 
throughout  by  a  most  offensive  show  of  par- 

30  J.  Q.  Adams :  Memoirs,  i,  pp.  299-300. 


118  JUDICIAL  TENURE  IN 

tisanship.  The  evidence  against  him  was  ex 
parte  and  the  proceedings  were  probably  not 
impartial.  But  there  can  hardly  be  found 
any  ground  to  challenge  the  use  of  the  im- 
peachment power  in  this  case  as  improper 
or  to  allege  that  it  had  been  subject  to  abuse. 
Several  senators  refused  to  vote  on  the 
articles,  alleging  that  the  offenses  charged 
against  the  judge  did  not  amount  to  high 
crimes  and  misdemeanors.31  But  these  same 
gentlemen  had  accepted  the  theory  of  im- 
peachments laid  down  during  the  debates  on 
the  repeal  of  the  judiciary  act  of  1801,  upon 
which  the  charges  in  this  case  rested,  i.e., 
that  of  considering  misbehavior  and  high 
crimes  and  misdemeanors  as  synonymous 
terms.32  Still  others  objected  that  Judge 
Pickering  was  undoubtedly  insane  and  was, 
therefore,  not  amenable  to  any  judicial  tri- 
bunal for  his  acts.  But  Hamilton  in  expound- 
ing the  Constitution  had  expressly  admitted 
insanity  to  be  a  cause  of  removal,  while  dis- 
approving any  other  measure  of  inability.33 

si  J.  Q.  Adams:  pp.  304-309. 

32  See  speech  of  Senator  White,  Annals,  7th  Cong.,  1st 
Sess.,  pp.  117-122. 
ss  Federalist,  Ixxix. 


THE  UNITED  STATES  119 

And  it  would  be  difficult  to  find  greater  evi- 
dence of  that  incapacity  which  Madison  and 
others  thought  a  cause  for  impeachment. 
John  Quincy  Adams,  although  he  voted  "not 
guilty "  on  all  of  the  articles  of  impeachment, 
admitted  that  "there  were  circumstances  in 
the  case  of  Mr.  Pickering  which  might  at  once 
contribute  to  veil  the  designs  of  his  prosecu- 
tors, and  to  apologize  for  the  complaisance  of 
his  judges/"4 

The  Pickering  impeachment  would  have 
been  of  little  importance  as  an  isolated  case. 
For  the  office  of  judge,  Mr.  Pickering  was 
utterly  unqualified,  and  as  the  sentence  ex- 
tended only  to  removal,  the  effect  worked  no 
injustice.  His  family  and  friends  had  suf- 
fered him  to  go  at  large  and  to  take  his  place 
upon  the  bench,  although  he  had  been  relieved 
of  his  judicial  duties  at  least  twice  in  1801 
during  temporary  periods  of  insanity.  Since 
he  could  not  be  induced  to  resign,  it  was  emi- 
nently proper  that  he  be  removed  from  office 
by  impeachment  as  the  only  means  known  to 
the  Constitution. 

But  the  impeachment  of  Judge  Pickering 
was  only  the  initial  step  in  a  movement 

34  Ford :  Writings  of  John  Quincy  Adams,  iii,  p.  108. 


120  JUDICIAL  TENURE  IN 

wherein  the  Bepublicans  aimed  to  replace  the 
Federalists  upon  the  judiciary  with  their  own 
partisans  and  to  bring  the  judges  within  the 
control  of  the  legislature.  That  their  efforts 
were  confined  for  the  most  part  to  the  federal 
judges  was  due  to  the  fact  that  in  the  States 
the  courts  still  remained  under  legislative 
control  as  had  been  the  practice  since  1776. 
On  the  very  day  upon  which  Mr.  Pickering 
was  convicted,  the  impeachment  of  Justice 
Chase  of  the  United  States  Supreme  Court 
was  voted.  The  first  impeachment  "did  not 
sufficiently  develop  the  intentions  of  those 
by  whom  it  was  managed ;  it  did  not  disclose 
the  full  extent  of  their  views.  "35  But  with 
the  assault  upon  Justice  Chase  it  became  ap- 
parent that  the  majority  party  in  Congress 
had  determined  to  carry  out  Giles'  plan  to 
"sweep  the  supreme  judicial  bench  clean " 
through  the  process  of  impeachment. 

A  new  and  broader  theory  of  impeachments 
under  the  Constitution  was  asserted  by  Giles, 
who  declared: 

An  impeachment  is  nothing  more  than  an  in- 
quiry by  the  two  Houses  of  Congress  whether  the 
office  of  a  public  man  might  not  be  better  filled  by 

35  Ford:  iii,  p.  109. 


THE  UNITED  STATES  121 

another.  He  labored  with  excessive  earnestness  to 
show  .  .  .  certain  principles  upon  which  not  only 
Mr.  Chase  but  all  of  the  judges  of  the  Supreme 
Court,  excepting  the  last  one  appointed,  must  be 
impeached  and  removed.  He  treated  with  the  ut- 
most contempt  the  idea  of  an  independent  judi- 
ciary .  .  .  said  there  was  not  a  word  in  the  Con- 
stitution about  such  an  independence,  and  that 
their  pretensions  to  it  were  nothing  more  nor  less 
than  an  attempt  to  establish  an  aristocratic  des- 
potism in  themselves.  The  power  of  impeachment 
was  given  without  limitation  to  the  House  of 
Representatives,  and  the  power  of  trying  impeach- 
ments was  given  equally  without  limitation  to  the 
Senate.  And  if  the  judges  of  the  Supreme  Court 
should  dare,  as  they  had  done,  to  declare  an  act  of 
Congress  unconstitutional  or  to  send  a  mandamus 
to  the  President,  as  they  had  done,  it  was  the  un- 
doubted right  of  the  House  of  Representatives  to 
impeach  them,  and  of  the  Senate  to  remove  them 
for  giving  such  opinions,  however  honest  or  sincere 
they  may  have  been  in  entertaining  them.  A  trial 
and  removal  of  a  judge  upon  impeachment  need 
not  imply  any  criminality  or  corruption  in  him, 
but  was  nothing  more  than  a  declaration  of  Con- 
gress to  this  effect:  You  hold  dangerous  opinions, 
and  if  you  are  suffered  to  carry  them  into  effect 
you  will  work  the  destruction  of  the  nation.  We 


122  JUDICIAL  TENURE  IN 

want  your  offices  for  the  purpose  of  giving  them 

to  men  who  will  fill  them  better.36 

Even  among  the  Eepublicans  this  broad 
view  of  the  impeachment  power  did  not  find 
ready  acceptance  and  a  serious  division  in  the 
ranks  of  that  faction  soon  appeared.37  Not 
even  the  managers  of  the  prosecution  were 
agreed  upon  the  line  of  argument.  While 
John  Randolph  supported  the  view  of  Giles 
that  the  impeachment  power  is  without  limit, 
he  was  contradicted  by  other  managers  who 
contended  that  an  offense  amounting  to  a 
crime  must  be  proved  to  obtain  a  conviction. 
The  excessive  vanity  and  insolence  of  Ran- 
dolph and  the  repeated  contradictions  of  the 
other  managers  threw  the  argument  for  the 
prosecution  into  such  confusion  that  Timothy 
Pickering  became  "persuaded  they  sincerely 
wished  they  had  not  meddled  with  Judge 
Chase.  "38  The  managers  soon  proved  to  be 
no  match  for  Mr.  Chase  and  his  attorneys, 
who  put  such  fair  and  legal  construction  upon 
his  judicial  acts  that  his  acquittal  was  secured 

86  J.  Q.  Adams:  Memoirs,  i,  pp.  321  et  seq. 

8?  Life  and  Correspondence  of  Eufus  King,  iv,  p.  440. 

88  Ibid.,  iv,  pp.  441-442. 


THE  UNITED  STATES  123 

by  a  good  margin,  six  of  the  Kepublican  sena- 
tors voting  with  the  Federalists  in  his  favor.39 

IV 

With  the  acquittal  of  Justice  Chase  the 
partisans  of  Jefferson  were  forced  to  abandon 
their  attempt  to  bring  about  the  removal  of 
Federalist  judges  through  the  impeachment 
process.  Nevertheless,  Kandolph  was  deter- 
mined to  find  further  means  of  bringing  the 
judges  under  legislative  control.  To  this  end 
he  hurried  from  the  high  court  of  impeach- 
ment upon  its  adjournment  to  introduce  in 
the  House  of  Representatives  a  bill  propos- 
ing a  constitutional  amendment  whereby  the 
judges  of  the  courts  of  the  United  States 
might  be  removed  on  joint  address  of  the  two 
Houses  of  Congress.40  He  declared  a  prin- 
ciple had  been  established  by  the  Senate 
"that  an  officer  of  the  United  States  may  act 
in  as  corrupt  a  manner  as  he  pleases,  without 
there  being  any  constitutional  provision  to 
call  him  to  account. "  His  motion  was  sec- 
onded by  Mr.  Smilie,  who  thought  '  '  that  part 

8»  See  Eeport  of  the  Trial  of  Samuel  Chase,  2  vols. 
(Baltimore,  1805). 

40  Annals,  8th  Cong.,  1st  Sess.,  p.  1213. 


124  JUDICIAL  TENURE  IN 

of  the  Constitution  which  relates  to  the  power 
of  impeachment  had  become  a  nullity, "  and 
that  it  had  become  impossible  to  convict  any 
man  upon  an  impeachment.41  But  it  was  then 
too  late  in  the  session  for  Congress  to  take 
up  the  consideration  of  the  measure. 

The  procedure  of  removal  on  joint  address 
of  the  two  houses  of  the  legislature  had  been 
incorporated  in  many  of  the  early  State  con- 
stitutions.42 It  was  borrowed  from  the  Eng- 
lish Act  of  Settlement  which  guaranteed  the 
judges  a  tenure  during  good  behavior,  but 
made  them  removable  by  the  crown  upon  ad- 
dress of  the  two  Houses  of  Parliament. 
Under  the  English  system  the  address  was 
originally  a  petition  to  the  crown,  but  under 
the  modern  theory  of  Parliamentary  sover- 
eignty the  address  became  essentially  an  ex- 
ercise of  the  legislative  power  of  Parliament. 
Of  course,  the  concurrence  of  the  crown  is 
essential  to  a  removal,  but  the  refusal  of  such 
assent  would  be  as  startling  as  an  exercise  of 

«  Annals,  9th  Cong.,  1st  Sess.,  pp.  502-503. 

«  Of  the  revolutionary  State  constitutions  five  contained 
provisions  for  the  removal  of  judges  on  address  or  upon 
joint  resolution  of  the  houses  of  the  legislature.  See  Horace 
Davis:  American  Constitutions,  J.  H.  U.  Studies,  Series  3, 
p.  508. 


THE  UNITED  STATES  125 

the  veto.  Since  no  legislative  body  in  the 
United  States  or  in  any  of  the  States  is  en- 
dowed with  the  complete  sovereignty  pos- 
sessed by  the  British  Parliament,  the  pro- 
cedure of  removal  on  address  has  of  neces- 
sity suffered  such  modifications  as  practice 
demanded.  Massachusetts  sought  to  embrace 
in  the  exercise  of  the  removal  the  four  organs 
of  government — the  two  houses  of  the  legis- 
lature, the  governor,  and  the  council.43  Other 
States  have  left  the  judges  removable  on 
joint  resolution  of  both  houses  of  the  legis- 
lature but  have  provided  for  a  hearing  and 
a  statement  of  causes  making  the  procedure 
similar  to  that  of  an  impeachment.44 

The  intention  of  the  framers  of  the  early 
State  constitutions  with  respect  to  the  pro- 
visions for  removal  on  address  is  somewhat 
difficult  to  determine.  In  England  the  pro- 
cedure was  adopted  as  an  additional  means 
of  securing  good  behavior  on  the  part  of  the 
judges.  It  did  not  supersede  impeachment, 
but  was  available  for  the  removal  of  judges 
for  any  offense  whatsoever.  At  the  same 
time  it  placed  in  the  hands  of  Parliament  a 

43  Thorpe:  Charters  and  Constitutions,  p.  ]905. 
"Stimson:  Federal  and  State  Constitutions,  pp.  232-233. 


126  JUDICIAL  TENURE  IN 

means  of  superintending  the  administration 
of  justice.45  The  only  case  in  which  an  ad- 
dress for  the  removal  of  an  English  judge  re- 
ceived the  sanction  of  both  Houses  of  Par- 
liament and  the  compliance  of  the  crown 
charged  an  impeachable  offense.46  On  a  re- 
cent occasion  the  House  of  Commons  showed 
its  willingness  to  consider  the  expedient  of 
address  for  the  removal  of  a  judge  who  had 
criticised  members  of  Parliament  in  a  public 
address.47  The  removal  of  an  English  judge, 
therefore,  is  but  an  act  of  sovereignty,  sub- 
ject to  no  conditions  save  such  as  are  volun- 
tarily imposed. 

It  seems  clear,  however,  that  the  framers 
of  the  Massachusetts  constitution  of  1780  in 
adopting  the  procedure  of  removal  on  address 
intended  that  this  expedient  should  be  used 

45  For  a  study  of  the  English  mode  of  removal  on  ad- 
dress see  Todd:   Parliamentary  Government  in  England,  i, 
pp.  352  et  seq.,  and  ii,  pp.  727  et  seq. ;  Broom :  Constitutional 
Law,   pp.    792    et   seq.;    Hansard:    Parliamentary   Debates, 
Ixvii,  pp.  1006,  1027;  clxiii,  p.  900;  clxxxii,  p.  1629;  clxxxiii, 
p.  835. 

46  Sir  Jonah  Barrington,   Judge   of   the   High   Court  of 
Admiralty,  who  was  removed  in  1829.     See  Todd:  op.  cit., 
ii,  p.  736. 

47  Parliamentary  Debates,  5th  Series,  xxi,  p.  291 ;   xxii, 
p.  366. 


THE  UNITED  STATES  127 

only  in  cases  not  warranting  impeachment. 
John  Quincy  Adams  in  1803  dissented  from 
a  vote  of  the  legislature  for  the  removal  of 
two  judges  on  the  ground  that  "no  judicial 
officer  should  be  removed  from  office,  by  the 
mode  of  an  address  of  the  two  houses,  on  the 
ground  of  offences,  for  the  trial  of  which  the 
constitution  has  expressly  provided  the  mode 
of  impeachment. ' H8  Further  support  for  this 
view  of  the  power  of  removal  on  address  may 
be  found  in  the  debates  of  the  constitutional 
convention  held  in  1820.  Justice  Story  de- 
clared, "The  governor  and  council  might  re- 
move them  (the  judges  of  the  supreme  court) 
on  address  of  a  majority  of  the  legislature, 
not  for  crimes  and  misdemeanors,  for  that 
was  provided  in  another  manner. "  Chief 
Justice  Shaw,  of  the  supreme  court  of  the 
State,  thought  the  mode  of  removal  on  ad- 
dress was  to  be  used  in  cases  of  incapacity 
from  natural  infirmities  or  some  disability, 
and  impeachment  should  be  the  remedy  in 

48  Paul  D.  Sargent  and  William  Vinal,  judges  of  the 
court  of  common  pleas  in  Hancock  County,  were  removed 
after  having  been  convicted  of  willful  extortion  in  office. 
Ford:  Writings  of  John  Quincy  Adams,  iii,  p.  12. 


128  JUDICIAL  TENURE  IN 

cases  involving  crime  or  misbehavior.49  The 
early  practice  proved  to  be  in  harmony  with 
this  theory  when  Theophilus  Bradbury,  hav- 
ing been  stricken  with  paralysis  in  1803,  was 
removed  from  the  supreme  court  upon  ad- 
dress.50 

But  in  Kentucky  no  limits  were  placed 
upon  the  power  of  the  legislature  to  vote  an 
address  for  the  removal  of  a  judge.  The 
subject  was  discussed  in  the  constitutional 
convention  of  1799,  and  a  proposition  to 
render  impossible  the  removal  of  judges  for 
a  judicial  opinion,  or  without  a  finding  facts 
by  a  competent  jury,  was  defeated.51  At  no 
time  did  the  Kentucky  general  assembly 
allow  the  good  behavior  tenure  guaranteed 
the  judges  to  interfere  seriously  with  their 
control  of  the  judiciary.  On  several  occa- 
sions courts  were  abolished  for  the  sole  pur- 
pose of  getting  rid  of  objectionable  judges. 
As  early  as  1795,  an  effort  was  made  to  ad- 
dress out  of  office  Judges  Muter  and  Sebas- 

4»16  American  Law  Review,  p.  552;  Debates  of  the 
Convention  (1820),  p.  216. 

so  Foster  on  the  Constitution,  p.  642. 

»i  Breckinridge :  Administration  of  Justice  in  Kentucky 
(Dissertation,  University  of  Chicago,  1897),  p.  36. 


THE  UNITED  STATES  129 

tian  because  of  a  decision  in  a  case  touching 
conflicting  claims  to  the  same  land  under 
grants  by  the  commission  constituted  under 
Virginia  laws.  A  second  attempt  to  remove 
Judge  Muter  was  begun  in  1806  on  the 
ground  that  he  had  become  too  aged  and  in- 
firm to  perform  judicial  duties.  The  judge 
was  induced  to  resign  before  the  address  was 
voted,  and  was  granted  a  pension  which  the 
legislature  repealed  in  1809  over  the  veto  of 
the  governor.52  In  the  same  year  Judge 
Sebastian  was  summoned  before  the  legis- 
lature on  a  charge  of  having  received  a  bribe 
from  the  Spanish  government,  but  his  imme- 
diate resignation  prevented  further  action.53 
Encroachments  upon  the  judicial  department 
continued  at  intervals  until  1824,  when  an 
attempt  was  made  to  address  the  entire  su- 
preme court  of  State  out  of  office  on  the 
ground  that  such  power  was  available  "for 
any  mere  error  of  judicial  opinion,  which 
does  not  amount  to  misdemeanor,  if  it  inflicts 
upon  the  community  such  injury  as  in  their 
belief  amounts  to  a  reasonable  cause  of  re- 

52  Breckinridge :  op.  cit.,  pp.  74-77. 

53  Monroe  MSS.,  Jan.  3,  1807. 


130  JUDICIAL  TENURE  IN 

moval,  provided  only  that  they  observe  the 

constitutional  form. ' >54 

Whatever  may  have  been  the  motive  for 
placing  the  mode  of  removal  on  address  in 
the  various  State  constitutions,  the  practice 
has  been  to  use  the  expedient  as  an  alterna- 
tive for  impeachment.  In  New  Hampshire 
a  consistent  effort  was  made  to  restrict  the 
use  of  removal  on  address  to  cases  of  mental 
and  physical  incapacity,  and  the  early  re- 
movals were  for  such  causes.55  But  in  1871 
a  number  of  removals  were  made  for  political 
reasons  and  an  attempt  by  constitutional 
amendment  to  prevent  a  recurrence  of  such 
use  of  the  power  of  removal  on  address  was 
defeated  at  the  polls.56 

After  1803  the  Massachusetts  legislature 
returned  to  the  principles  laid  down  by  the 
framers  of  the  constitution,  and  for  a  time 
impeachment  was  the  only  remedy  used  in 
cases  of  crimes  and  misdemeanors.57  But 
more  recently  the  legislature  has  declared 

5*Breckinridge:  op.  cit.,  pp.  78-82. 

ss  Granite  Monthly,  iv,  p.  133. 

&«  American  Annual  Cyclopedia  (1871),  p.  543;  (1877), 
p.  547. 

57  Impeachment  of  Judge  Prescott  (1821),  Poster:  op. 
cit.,  p.  641. 


THE  UNITED  STATES  131 

that  "everything  which  indicates  the  fitness 
or  unfitness  of  a  judicial  officer  may  be  con- 
sidered upon  the  question  of  his  removal  on 
address. '  '58  Since  the  Civil  War  at  least  two 
removals  have  been  effected  in  Massachu- 
setts for  offenses  which  could  have  been 
prosecuted  under  the  impeachment  clause. 

In  some  of  the  States  the  mode  of  removal 
on  address  has  been  used  to  rid  the  bench  of 
judges  whose  offenses  were  so  serious  as  to 
have  demanded  their  removal  upon  impeach- 
ment in  order  that  disqualification  from  hold- 
ing further  office  might  be  imposed.  During 
the  period  immediately  following  the  Civil 
War  the  circuit  judiciary  of  West  Virginia 
was  burdened  with  Nathaniel  Harrison,  a 
notoriously  corrupt  and  intemperate  man. 
Several  attempts  were  made  to  address  Judge 
Harrison  from  the  bench  because  of  the  mal- 
administration of  his  office  and  the  lewd  and 
corrupt  manner  of  his  life.  These  failed 
because  a  majority  of  the  legislature  ap- 
proved his  persecution  of  ex-Confederates 
and  were  willing  to  overlook  his  defects  of 
character.  But  his  conduct  in  1870  aroused 

es  Foster:  op.  cit.,  p.  643.  See  also  Eeport  of  Committee 
on  Eemoval  of  J.  M.  Day  (Boston,  1881). 


132  JUDICIAL  TENURE  IN 

such  widespread  indignation  that  resolutions 
for  his  removal  passed  both  houses  of  the 
legislature.  In  the  meantime  the  judge  had 
fled  to  Pittsburgh,  where  he  took  refuge  in 
a  brothel  and  forwarded  his  resignation  to 
the  governor.59  All  of  the  removals  on  ad- 
dress in  New  York  have  been  for  such  mal- 
versation in  office  as  would  properly  have 
been  subjects  of  impeachment  in  order  that 
the  people  of  the  State  might  have  no  fear 
of  the  offenders  being  again  placed  in  office.60 
It  is  perhaps  surprising  to  find  that  the 
form  of  address  has  seldom  been  used  to  re- 
move judges  for  political  reasons.  While 
legislatures  have  been  very  active  in  limiting 
the  functions  of  the  judiciary  and  have  been 
extremely  parsimonious  in  providing  salaries 
for  the  judges,  there  have  been  no  such  par- 
tisan attacks  through  the  mode  of  address 
as  were  undertaken  during  the  Jeffersonian 
period  through  the  impeachment  process. 
Maine  claims  the  distinction  of  having  made 
the  first  judicial  removal  on  address  on  the 
grounds  of  party  policy.  In  1856,  Woodbury 

59  Laws  of  West  Virginia  (1870-1871),  p.  136;  Why  the 
Solid  South?  pp.  282-284. 

oo  Foster :  op.  cit.,  pp.  645-657. 


THE  UNITED  STATES  133 

Davis,  a  justice  of  the  supreme  court  of  the 
State,  was  removed  as  a  result  of  a  partisan 
attack  by  the  governor  and  the  legislature. 
A  dispute  had  arisen  over  an  opinion  of  the 
judge  upon  a  constitutional  question  which 
he  had  declared  wisely  and  temperately,  but 
against  the  interests  of  the  party  in  power. 
Instead  of  taking  an  appeal  to  the  full  bench 
of  the  supreme  court,  an  address  was  carried 
in  both  houses  along  party  lines  and  the 
assent  of  the  governor  secured  for  the  re- 
moval of  Judge  Davis.61  A  few  years  later, 
Massachusetts  was  the  scene  of  a  partisan 
removal  when  the  abolitionists  attacked 
Judge  Loring.  The  judge  had  incurred  the 
hostility  of  the  extreme  abolitionists  by  his 
execution  of  the  fugitive  slave  law  while  act- 
ing as  United  States  Commissioner.  The 
removal  was  urged  by  Wendell  Phillips,  who 
gave  an  impassioned  harangue  before  the 
assembly,  in  which  he  sought  to  show  the  un- 
limited power  of  the  legislature  to  ask  the 
removal  of  a  judge  who  had  acted  contrary 
to  public  sentiment.  But  the  address  did  not 
pass  the  legislature  until  after  a  long  debate, 

«i  Adams :  Life  of  Kichard  JETenry  Dana,  i,  p.  351 ;  Law 
Eeporter,  xix,  pp.  61  et  seq. ;  p.  652. 


134  JUDICIAL  TENURE  IN 

and  two  years  more  elapsed  before  a  com- 
plaisant governor  could  be  found  to  assent 
to  the  measure.62 

As  a  matter  of  fact,  removal  on  legislative 
address  has  become  in  nearly  all  States  obso- 
lete. Short  terms  and  popular  elections  have 
made  the  judges  more  responsible  to  public 
opinion,  but  have  at  the  same  time  rendered 
them  more  independent  of  legislative  control. 
Then,  too,  the  exercise  of  the  power  of  re- 
moval on  address  has  been  hedged  about  by 
many  constitutional  restrictions.  In  most 
States  a  majority  of  two-thirds  of  both  houses 
of  the  legislature  is  required  to  pass  an  ad- 
dress, while  in  many  States  the  judge  is  en- 
titled to  a  hearing  and  a  statement  of  the 
causes  for  removal.  The  procedure  is  thus 
made  as  cumbrous  and  unwieldly  as  an  im- 
peachment and  legislatures  have  hesitated  to 
undertake  its  exercise.  In  recent  years  the 
tendency  has  been  to  free  the  judiciary  from 
legislative  control,  and  to  this  end  Alabama, 
Florida  and  Mississippi  have  removed  the 
provisions  relating  to  legislative  address 

«2  Phillips:  Speeches  and  Lectures  (5th  ed.),  pp.  154-212; 
Adams:  op.  cit.,  i,  pp.  341-347;  Merriam:  Life  and  Times 
of  Samuel  Bowles,  i,  pp.  131-134. 


THE  UNITED  STATES  135 

from  their  constitutions.63  At  the  present 
time  discussions  of  means  of  securing  respon- 
sibility on  the  part  of  judges  and  the  deter- 
mination of  good  behavior  have  centered  on 
new  remedies  such  as  the  popular  recall. 

V 

Efforts  to  incorporate  in  the  federal  Con- 
stitution provisions  for  the  removal  of  judges 
upon  legislative  address  have  been  made  on 
nearly  every  occasion  when  the  courts  have 
been  under  criticism.  Such  criticism  has 
developed  in  four  well-marked  and  definite 
periods  of  our  history,  in  each  of  which  Con- 
gress has  been  besought  to  place  restraints 
upon  the  judiciary  either  by  limiting  the 
functions  of  the  courts  or  by  introducing  new 
means  of  controlling  the  judges.  Nearly  all 
of  these  proposals  are  to  be  traced  either  to 
partisan  desire  to  control  the  judiciary  or  to 
efforts  to  restrain  the  judiciary  from  passing 
upon  the  constitutionality  of  acts  of  Congress. 

The  attempts  of  the  Republicans  during  the 
administration  of  Jefferson  to  oust  the  Fed- 
eralists from  the  judiciary  resulted  in  the 
introduction  of  numerous  propositions  for 

03  Thorpe:  op.  cit.,  pp.  207,  802,  1110,  2110. 


136  JUDICIAL  TENURE  IN 

the  removal  of  judges  by  legislative  address. 
While  Congress  turned  to  other  matters  of 
public  policy,  pressure  from  the  State  legis- 
latures kept  the  issue  alive.  The  legislature 
of  Vermont  in  1807  sent  resolutions  to  the 
other  State  legislatures  calling  attention  to 
the  want  of  a  provision  for  the  removal  of 
judges  of  the  federal  courts  except  for  causes 
warranting  impeachment.64  Pennsylvania 
favored  the  adoption  of  an  amendment  giving 
Congress  power  to  remove  judges  on  legis- 
lative address,  but  Delaware  and  Rhode 
Island  objected  to  such  provision  and  in- 
structed their  senators  and  representatives 
to  oppose  its  adoption.65 

A  general  feeling  predominated  that  im- 
peachment could  not  be  used  in  practice  and 
that  some  other  means  of  keeping  the  judges 
in  order  ought  to  be  introduced.  Jefferson 
thought  that  impeachment  was  "not  even  a 
scare  crow"  and  that  the  courts  had  become 
"independent  of  the  will  of  the  nation  it- 
self. ' '  The  independence  of  the  judges  was 

«*  Annals,  10th  Cong.,  1st  Sess.,  p.  99. 
«B  Journal    Pennsylvania    Senate    (1807-1808),    pp.    163- 
170;  Annals,  llth  Cong.,  2d  Sess.,  p.  631. 
eo  Works  (ed.  Ford),  vii,  pp.  134,  192. 


THE  UNITED  STATES  137 

held  to  be  "one  of  the  greatest  absurdities 
that  can  possibly  be  imagined,  and  in  many 
instances  operates  exactly  the  reverse  of 
what  was  expected  by  the  people:  In  many 
instances  it  is  a  continuance  during  bad 
behavior. '  m 

The  partisan  attack  upon  the  judiciary 
ceased  only  to  break  forth  again  after  a  few 
years  in  a  States '  rights  movement  to  restrict 
the  appellate  jurisdiction  of  the  Supreme 
Court  of  the  United  States.  The  great  con- 
stitutional decisions  under  Chief  Justice 
Marshall  aroused  the  defenders  of  State 
sovereignty,  and  those  who  had  begun  the 
assault  upon  the  courts  for  the  purpose  of 
making  partisan  removals  now  turned  their 
attention  to  measures  limiting  the  jurisdic- 
tion and  functions  of  the  judiciary.  Follow- 
ing the  decision  in  Cohens  v.  Virginia  (6 
Wheaton  264),  resolutions  of  protest  were 
passed  by  the  Virginia  legislature  and  pro- 
posals to  urge  a  series  of  amendments  to  the 
Constitution  placing  limitations  upon  the 
power  and  jurisdiction  of  the  federal  courts 

«7  Experience    the    Test    of    Government    (Philadelphia, 

1805). 


138  JUDICIAL  TENURE  IN 

were  defeated  by  a  narrow  margin.68  When 
Congress  assembled  in  1821  it  was  proposed 
to  have  an  amendment  to  the  Constitution 
giving  the  Senate  appellate  jurisdiction  "in 
all  controversies  where  the  judicial  power  of 
the  United  States  shall  be  so  construed  as  to 
extend  to  any  case  .  .  .  arising  under  the 
Constitution,  and  to  which  a  State  shall  be 
a  party.  "69  While  this  proposition  did  not 
meet  with  much  favor,  it  gave  opportunity 
for  the  introduction  of  another  bill  to  provide 
an  amendment  giving  Congress  power  to  re- 
move judges  upon  legislative  address  bot- 
tomed on  the  idea  that  the  judges  were  too 
independent  for  the  public  good.70 

In  reality  the  opponents  of  the  judiciary 
had  changed  the  basis  of  their  attack  from 
that  of  a  partisan  movement  against  the 
judges  to  an  effort  to  subordinate  the  federal 
courts  to  the  theory  of  State  sovereignty.  In 
the  new  movement  only  the  radical  States' 
rights  faction  was  active.  Their  struggle  cul- 
minated in  the  attempt  in  1831  to  repeal  the 

es  Ames:  Federal  Relations,  p.  103. 
«»  Annals,  17th  Cong.,  1st  Sess.,  p.  68. 
™  See  speech  of  Mr.   Holmes,  Annals,   17th  Cong.,    1st 
Sess.,  p.  114. 


THE  UNITED  STATES  139 

25th  section  of  the  judiciary  act  of  1789.  In 
this  they  were  so  decisively  defeated  in  the 
House  of  Representatives  that  they  gave  up 
all  further  efforts  to  place  restriction  on  the 
courts.71 

A  third  assault  upon  the  independence  of 
the  federal  judiciary  was  undertaken  just 
after  the  close  of  the  Civil  War,  when  the 
United  States  Supreme  Court  began  to 
emerge  from  the  somewhat  humble  position 
into  which  it  had  been  cast  by  the  circum- 
stances surrounding  the  decision  in  the  Dred 
Scott  case.  During  the  winter  of  1866  and 
1867  the  court  handed  down  several  decisions 
which  boded  ill  for  the  radical  projects  of 
reconstruction.  Proposals  were  made  to 
create  a  special  tribunal  to  decide  constitu- 
tional questions,  to  require  two-thirds  of  the 
supreme  court  to  declare  an  act  of  Congress 
unconstitutional,  and  to  make  possible  the 
removal  of  judges  upon  legislative  address.72 
None  of  these  measures  became  law  since  the 
supreme  court  soon  showed  a  willingness  to 

71  E.  S.  Corwin :  Michigan  Law  Eeview,  ix,  p.  283 ;  Niles 
Weekly  Register,  xxix,  p.  401. 

72  Globe,  39th  Cong.,  2d  Sess.,  pp.  251,  492-498,  1313. 


140  JUDICIAL  TENURE  IN 

acquiesce  in  the  plans  for  reconstruction,  and 
opposition  to  the  courts  was  stilled. 

The  recent  criticism  of  the  judiciary,  both 
State  and  national,  has  developed  because  of 
the  numerous  legislative  enactments  which 
have  been  set  aside  by  the  courts,  especially 
such  acts  as  were  believed  to  be  in  line  with 
social  and  economic  progress.  From  this 
agitation  has  sprung  the  new  procedure  of 
the  popular  recall  of  judges  and  the  demand 
for  the  popular  review  of  decisions  in  which 
the  courts  have  set  aside  legislative  enact- 
ments. It  is  important  to  note  that  it  is  not 
legislative  control  of  the  courts  which  is  now 
advocated  but  the  responsibility  of  the  judi- 
ciary to  the  people.73 

Nevertheless,  several  propositions  have 
been  made  looking  towards  the  establishment 
of  removal  on  legislative  address.  One  of 
these  urged  in  the  House  of  Eepresentatives 
by  Mr.  Hull  of  Tennessee  seeks  to  establish 
a  simplified  substitute  for  impeachment. 
Mr.  Hull  has  taken  the  further  view  that  the 
regulation  of  inferior  courts  is  within  the 
power  of  Congress  and  it  is  not  unbecoming 
for  the  two  houses  to  exercise  a  power  of 

78  Cong.  Kecord,  63d  Cong.,  1st  Sess.,  p.  1052. 


THE  UNITED  STATES  141 

removal  with  respect  to  inferior  judges.  But 
the  supreme  court  he  terms  a  '  *  constitutional 
court ' '  and  omits  its  justices  from  the  opera- 
tion of  his  provision  on  the  ground  that  their 
inclusion  would  be  inconsistent  with  a  proper 
co-ordination  of  the  departments  of  govern- 
ment.74 Much  more  radical  than  this  was  the 
proposition  brought  forward  by  Senator 
Owen  in  July,  1911.  This  proposal  was  in 
the  form  of  a  bill  to  provide  for  the  ' '  legisla- 
tive recall"  of  any  judge  of  a  federal  court 
by  the  simple  expedient  of  a  resolution  passed 
by  Congress  calling  upon  the  President  to 
nominate  a  successor  to  such  judge.  The 
constitutionality  of  this  measure  was  urged 
on  the  ground  that  while  the  Constitution 
provides  for  the  removal  of  judges  upon  im- 
peachment, Congress  is  given  a  variety  of 
powers  to  regulate  the  judicial  establishment 
and  from  these  is  to  be  implied  not  only  the 
power  to  recall  but  also  to  elect  federal 
judges.75 

Although  most  of  these  efforts  to  impose 
restraints  upon  the  courts  and  to  limit  the 
independence  of  the  judges  have  been  actu- 

74  63d  Cong.,  1st  Sess.,  H.  J.  Ees.  114. 

75  Cong.  Eecord,  62d  Cong.,  1st  Sess.,  p.  3359. 


142  JUDICIAL  TENURE  IN 

ated  by  motives  which  threatened  danger  to 
the  judicial  department,  there  has  been  a 
well-defined  feeling  that  under  the  Constitu- 
tion misbehavior  on  the  part  of  judges  could 
not  be  punished.  There  can  be  no  doubt  that 
while  on  the  one  hand  the  acquittal  of  Justice 
Chase  was  salutary  in  checking  partisan  at- 
tacks on  the  judiciary,  on  the  other  hand  the 
result  was  practically  to  narrow  the  impeach- 
ment power  to  such  limits  as  were  never  in- 
tended by  the  framers  of  the  Constitution. 
There  was  created  in  the  minds  of  men  the 
firm  belief  that  where  any  defense  was  made, 
conviction  upon  impeachment  was  impossible 
before  men  of  ordinary  prejudices  and  pas- 
sions, and  that  the  judges  were  thus  exempt 
from  all  control. 

This  belief  was  voiced  in  Congress  in  1830, 
when  James  Buchanan  declared  that  "if  the 
power  to  impeachment  presents  no  prospect 
to  the  people  of  removing  an  arbitrary  and 
tyrannical  judge,  the  people  will  soon  begin 
to  inquire  whether  the  judicial  office  ought 
not  to  be  limited  to  a  term  of  years. ' m  The 
same  view  was  reiterated  in  greater  detail 
by  Judge  Spencer,  who  said : 

7«  Trial  of  Judge  Peck  (Washington,  1831),  p.  289. 


THE  UNITED  STATES  143 

If  the  constitutional  power  of  the  House  of 
Representatives  to  impeach  officers  of  this  govern- 
ment, and  the  power  of  the  Senate  to  try  them, 
should  become  inefficient  and  a  solemn  mockery,  as 
it  has  been  represented  it  would  be;  and  if  the 
people  came  to  believe  that  guilty  men  can  pass 
this  ordeal  unhurt  and  untouched,  the  inevitable 
consequence  will  be  that  the  tenure  of  judicial 
offices  will  be  changed,  and  the  independence  of 
the  judiciary  will  be  destroyed.77 

Subsequent  efforts  to  make  use  of  the  im- 
peachment power  have  tended  to  strengthen 
this  feeling.  In  the  United  States  only  six 
cases  have  come  to  trial  before  the  Senate 
since  the  acquittal  of  Justice  Chase.78  If  we 
except  the  case  of  Judge  Humphreys,  who 
was  removed  on  an  impeachment  when  he 

77  Trial  of  Judge  Peck,  p.  473. 

78  The    following    impeachments    have    been    undertaken 
before  the  Senate  in  the  course  of  our  history:     William 
Blount,    Senator    from    Tennessee,    acquitted    1798;    John 
Pickering,  Judge  of  District  Court,  convicted  1803;  Samuel 
Chase,   Justice   of   Supreme   Court,   acquitted   1805;    James 
H.  Peck,  Judge  of  District  Court,  acquitted  1831;  West  H. 
Humphreys,    Judge    of    District    Court,    convicted     1862; 
Andrew  Johnson,  President  of  the  United  States,  acquitted 
1868;  William  Belknap,  Secretary  of  War,  acquitted  1876; 
Charles  Swayne,  Judge  of  District  Court,  acquitted  1905 ; 
Kobert  W.  Archbald,  Judge  of  Commerce  Court,  convicted 
]913. 


144  JUDICIAL  TENURE  IN 

adhered  to  the  Confederacy  and  refused  to 
resign  his  federal  office,  and  who  was  im- 
peached because  there  was  no  other  way  of 
effecting  his  removal,  no  convictions  were 
secured  until  1913.  In  each  case  that  has 
arisen  the  defense  has  sought  to  restrict  the 
scope  of  the  impeachment  power  to  very 
narrow  limits  and  has  succeeded  in  leading 
a  sufficient  number  of  senators  to  vote  for 
acquittal  in  the  belief  that  the  offenses 
charged  did  not  amount  to  high  crimes  and 
misdemeanors. 

VI 

But  a  great  change  has  been  wrought  in  the 
popular  attitude  toward  the  impeachment 
power  by  the  recent  conviction  of  Judge 
Archbald,  of  the  United  States  Commerce 
Court,  who  was  removed  in  1913.  Indeed,  it 
has  seemed  that  the  ancient  remedy  can  be 
made  as  effective  as  intended  by  the  f ramers 
of  the  Constitution.  The  results  in  this  case 
have  demonstrated  that  party  lines  can  be 
swept  aside  and  the  technicalities  of  pleading 
rejected  where  it  is  sought  to  reach  a  man 
wholly  unfit  for  office.  Moreover,  the  scope 
of  the  impeachment  power  was  revealed  as 


THE  UNITED  STATES  145 

transcending  the  narrow  limits  imposed  by 
the  results  of  the  Chase  trial.  It  appeared 
fully  competent  to  protect  the  people  against 
unfitness  in  public  officers  and  became  again 
a  vigorous  weapon  as  intended  by  the  f  ramers 
of  the  Constitution.79 

Prior  to  his  impeachment  Judge  Archbald 
had  enjoyed  a  long  judicial  career.  He  was 
appointed  in  1901  a  judge  of  the  federal  dis- 
trict court  for  the  middle  district  of  Penn- 
sylvania, where  he  sat  until  January,  1911. 
He  was  then  promoted  to  the  circuit  court  and 
was  assigned  to  service  on  the  newly  created 
commerce  court.  In  the  course  of  his  trial  it 
became  evident  that  the  judicial  misconduct 
of  which  Mr.  Archbald  had  been  guilty  had 
extended  over  the  entire  period  he  had  been 
upon  the  bench. 

Charges  of  misconduct  on  the  part  of  Judge 
Archbald  were  first  brought  to  the  attention 
of  President  Taft  in  February,  1911.  After 
a  careful  investigation  by  the  Department 
of  Justice,  the  matter  was  thought  to  be  of 
sufficient  importance  to  claim  the  attention  of 
the  House  of  Representatives  and,  accord- 

79  Trial  of  Robert  W.  Archbald  (3  vols.),  63d  Cong., 
3d  Sess.,  Senate  Document  1140. 


146  JUDICIAL  TENURE  IN 

ingly,  in  May  all  the  papers  in  the  case  were 
transmitted  to  them.  The  testimony  showed 
that  at  different  times  Judge  Archbald  while 
on  the  district  bench  had  sought  credit  from 
persons  who  had  litigation  in  his  court.  After 
his  appointment  to  the  commerce  court,  the 
judge  had  used  his  influence  to  secure  favor- 
able business  negotiations  with  common  car- 
riers engaged  in  interstate  commerce  and 
having  at  the  time  suits  pending  in  his  court. 
These  were  for  the  most  part  contracts  in- 
volving options  on  culm  dumps  and  other 
coal  properties  obtained  from  officers  and 
agents  of  coal  companies  which  were  owned 
and  controlled  by  the  common  carriers. 
Judge  Archbald  repeatedly  sought  to  in- 
fluence the  officials  of  the  railroads  to  enter 
into  contracts  with  his  business  associates 
for  the  financial  benefit  of  himself.  While 
the  friends  of  the  judge  would  locate  proper- 
ties, Mr.  Archbald  would  take  up  the  matter 
of  the  purchase  or  sale  of  the  properties  with 
the  railroad  companies.  He  never  invested 
money  himself  in  any  of  the  deals  but  used 
his  influence  to  secure  favorable  terms  in  con- 
sideration of  which  he  was  to  receive  a  share 
in  the  profits. 


THE  UNITED  STATES  147 

The  charges  set  forth  in  thirteen  articles 
of  impeachment  presented  no  indictable  of- 
fenses. In  all  cases  they  alleged  instances  of 
misconduct  in  office  which,  if  true,  constituted 
breaches  of  the  good  behavior  tenure  granted 
judicial  officers.  Judge  Archbald  admitted 
generally  the  facts  stated  in  each  article  but 
declared  that  in  no  case  did  the  charge 
amount  to  an  impeachable  offense.  More- 
over, he  sought  to  limit  the  scope  of  the  im- 
peachment power  to  such  offenses  only  as 
were  indictable,  and  insisted  that  only  those 
offenses  which  were  alleged  to  have  been  com- 
mitted in  his  judicial  capacity  should  be  con- 
sidered. This  interpretation  would  have 
confined  the  operation  of  the  impeachment 
power  to  such  narrow  limits  as  to  include 
only  acts  of  misconduct  which  amounted  to 
crime  within  the  meaning  of  the  terms  high 
crimes  and  misdemeanors. 

This  narrow  construction  of  the  impeach- 
ment power  was  at  once  denied  by  Senator 
Works.  Such  construction,  he  said,  would 
continue  in  office  any  officer  whose  bad  be- 
havior did  not  reach  the  magnitude  of  crime. 
The  only  question  to  be  answered,  he  con- 
sidered, was  whether  Judge  Archbald  was 


148  JUDICIAL  TENURE  IN 

guilty  of  such  misbehavior  as  would  give 
cause  for  the  forfeiture  of  an  office  he  was 
entitled  to  hold  during  good  behavior.  That 
acts  of  misbehavior  were  to  be  construed  as 
high  crimes  and  misdemeanors,  although  no 
crime  could  be  proved,  was  the  view  shared 
by  Senators  Boot  and  Lodge.  But  Mr.  Eoot 
felt  that  some  of  the  charges,  although  they 
involved  improper  conduct,  fell  short  of  high 
crimes  and  misdemeanors.  After  the  con- 
viction of  Judge  Archbald  he  issued  a  state- 
ment in  which  he  declared: 

I  have  voted  the  respondent  "guilty"  because  I 
find  that  he  used  the  power  and  influence  of  his 
office  as  judge  to  secure  favors  of  money  value  for 
himself  and  his  friends  from  railroad  companies, 
some  of  which  were  litigants  in  his  court  and  all 
of  which  were  under  the  regulation  of  the  Inter- 
state Commerce  Commission  subject  to  the  review 
of  the  Commerce  Court.  I  consider  this  course  of 
conduct,  and  each  instance  of  it,  to  be  a  high  crime 
and  misdemeanor.  I  have  voted  ' '  not  guilty 7  J  upon 
other  articles  because,  while  most  of  them  involve 
improper  conduct,  I  do  not  consider  that  the  acts 
proved  are  high  crimes  and  misdemeanors.80 

so  Cong.  Record,  62d  Cong.,  2d  Sesa.,  p.  1448. 


THE  UNITED -STATES  149 

The  first  article  upon  which  Senator  Root 
voted  guilty,  and  upon  which  Judge  Archbald 
was  convicted  by  so  large  a  vote  as  to  be 
practically  unanimous,  charged  him  with  hav- 
ing entered  into  an  agreement  with  one 
Edward  J.  Williams  whereby  they  became 
partners  for  the  purchase  of  a  property 
known  as  the  Katydid  culm  dump  near 
Moosic,  Pennsylvania.  This  property  was 
owned  by  the  Hillside  Coal  and  Iron  Com- 
pany, a  corporation  all  of  whose  stock  was 
owned  by  the  Erie  Railroad  Company,  and 
one  John  M.  Robertson.  Williams,  having 
been  assured  that  the  share  of  Robertson 
could  be  purchased,  sought  the  aid  of  Judge 
Archbald  in  securing  the  interest  held  by  the 
Hillside  Coal  and  Iron  Company. 

Despite  the  fact  that  the  Erie  Railroad 
Company  was  a  party  litigant  at  this  time  to 
several  suits  before  the  United  States  Com- 
merce Court,  Judge  Archbald  entered  into 
negotiations  for  the  purchase  of  the  prop- 
erty. By  correspondence  and  personal  con- 
ference, not  only  with  officers  of  the  Hillside 
Coal  and  Iron  Company  but  also  with  the 
officers  of  the  Erie  Railroad  Company,  he 
secured  the  transfer  of  the  Katydid  culm 


150  JUDICIAL  TENURE  IN 

dump  to  the  partnership  he  had  formed  with 

Williams. 

Similar  misconduct  was  charged  in  the 
third  article  upon  which  conviction  was  also 
secured.  In  this  instance  Judge  Archbald 
was  accused  of  having  used  his  influence  to 
secure  from  the  Lehigh  Valley  Coal  Company 
a  lease  on  a  culm  dump  near  Shenandoah, 
Pennsylvania.  The  coal  company  was  owned 
by  the  Lehigh  Valley  Bailroad  Company, 
which  was  at  that  time  a  party  to  at  least 
two  suits  before  the  commerce  court. 

Upon  the  fifth  article  charging  slightly 
different  misbehavior  Judge  Archbald  was 
convicted  by  as  decisive  a  vote  as  before.  In 
this  case  it  was  shown  that  the  judge  had 
undertaken  to  intercede  with  the  officials  of 
the  Philadelphia  and  Beading  Eailroad  Com- 
pany to  secure  favorable  consideration 
toward  a  friend.  Frederick  Warnke  of 
Scranton,  Pennsylvania,  had  sought  repeat- 
edly to  secure  a  lease  on  a  near-by  culm  dump 
owned  by  the  Philadelphia  and  Beading  Coal 
and  Iron  Company.  His  efforts  were  in  vain 
although  he  had  negotiated  with  the  officers 
of  the  owning  corporation  and  with  the  presi- 
dent of  the  Philadelphia  and  Beading  Bail- 


THE  UNITED  STATES  151 

road  Company.  He  then  turned  to  Judge 
Archbald  who  sought  to  influence  the  officers 
of  both  corporations  to  accede  to  the  propo- 
sition made  by  Warnke.  Although  he  failed 
in  his  mediation,  Judge  Archbald  was  re- 
warded by  the  payment  of  a  promissory  note 
drawn  by  Warnke  and  his  associates. 

Misconduct  in  his  judicial  capacity  was 
charged  against  Mr.  Archbald  in  the  fourth 
article.  Here  it  was  proved  that  while  the 
suit  of  the  Louisville  and  Nashville  Railroad 
Company  v.  Interstate  Commerce  Commis- 
sion was  pending  in  the  commerce  court  a 
letter  was  written  by  Judge  Archbald  to  the 
attorney  for  the  railroad  company  asking 
information  as  to  the  testimony  of  one  of  his 
witnesses.  Without  the  knowledge  of  the 
other  members  of  the  commerce  court,  Judge 
Archbald  entered  into  correspondence  with 
the  attorney  for  the  railroad  company  dis- 
closing certain  developments  unfavorable  to 
the  case  of  the  company  and  soliciting  fur- 
ther arguments  in  support  of  their  conten- 
tions. This  action  was  taken  secretly  and 
without  the  knowledge  of  the  Interstate  Com- 
merce Commission. 

On  this  article  Judge  Archbald  was  con- 


152  JUDICIAL  TENURE  IN 

victed  by  a  trifle  more  than  two-thirds  of  the 
Senate.  Mr.  Eoot  voted  not  guilty,  express- 
ing the  view  that  while  improper  conduct 
was  involved  there  was  no  justification  for 
declaring  the  acts  to  be  high  crimes  and  mis- 
demeanors. Mr.  Lodge,  who  concurred  with 
Mr.  Root  in  his  vote  upon  all  the  other 
articles,  voted  the  respondent  guilty  upon 
this  charge. 

The  specific  charges  of  misconduct  raised 
in  the  first  twelve  articles  were  reinforced  in 
the  last  article  by  a  general  charge  of  mis- 
behavior during  the  judicial  career  of  Mr. 
Archbald.  Some  objection  was  made  by 
senators  to  this  article  on  the  ground  that 
it  was  not  limited  to  definite  offenses.  Never- 
theless, it  presented  a  comprehensive  state- 
ment of  the  sort  of  misbehavior  for  which 
the  judge  was  being  impeached,  and  his  con- 
viction on  this  article  was  a  distinct  triumph 
for  the  broad  view  of  the  impeachment  power. 

Expressions  of  satisfaction  with  the  action 
of  the  Senate  in  the  Archbald  case  were 
heard  on  all  sides.  The  journals  hailed  the 
result  as  an  effective  answer  to  those  who 
argued  that  impeachment  was  wholly  inade- 
quate for  practical  purposes,  and  many  saw 


THE  UNITED  STATES  153 

in  it  a  check  upon  the  agitation  for  the 
popular  recall.  The  Nation  in  an  editorial 
declared : 

The  removal  of  the  impeached  judge,  with  his 
disqualification  ever  again  to  hold  an  office  of 
honor  or  trust  under  the  United  States,  serves  at 
once  as  a  salutary  warning,  a  notification  that  the 
ancient  remedies  of  the  Constitution  have  not  lost 
their  virtue,  and  a  revelation  that  the  people  are 
aroused  and  vigilant  as  regards  anything  that  may 
stain  the  purity  of  the  judiciary. 

No  one  accused  Judge  Archbald  of  any  crime 
for  which  he  could  be  punished  in  a  court  of  jus- 
tice. There  was  no  charge  of  bribery  or  indirect 
sale  of  decisions.  The  only  legal  question  was 
whether  the  conduct  of  which  he  was  shown  to  be 
guilty  came  under  the  head  of  misdemeanors  or 
of  a  breach  of  that  good  behavior  upon  which  judi- 
cial tenure  depends,  in  such  a  way  that  the  Senate 
could  properly  remove  him  from  the  bench.81 

Unexpected  reinforcement  to  the  impeach- 
ment power  has  been  given  through  the  result 
of  the  trial  of  Governor  Sulzer  of  New  York, 
who  was  removed  in  the  autumn  of  1913. 
Although  the  impeachment  was  a  purely 
political  matter,  the  charges  rested  upon 
broad  grounds  of  unfitness  and  involved 

si  Nation,  Jan.  16,  1913. 


154  JUDICIAL  TENURE  IN 

offenses  committed  by  Mr.  Sulzer  prior  to 
his  election.  The  significance  of  this  removal 
lies  in  the  fact  that  very  broad  scope  can  be 
given  to  the  impeachment  power  with  reason- 
able certainty  of  finding  popular  approval. 

The  most  superficial  student  of  the  history 
of  our  courts  must  agree  with  Bryce  that 
although  ' '  the  judges  have  shown  themselves 
independent  of  Congress  and  of  party,  yet 
the  security  of  their  position  has  rarely 
tempted  them  to  breaches  of  judicial  duty." 
Impeachment  has  been  resorted  to  seldom, 
but  the  tone  of  the  federal  judiciary  has  been 
far  better  than  that  of  most  of  the  State 
courts.  The  acquittal  of  Justice  Chase 
placed  a  wise  check  upon  partisan  assaults 
against  the  courts,  although  it  tended  to  dis- 
courage all  use  of  the  impeachment  power. 
The  courts  have  thus  been  able  to  exercise 
fearlessly  and  unhampered  the  great  powers 
entrusted  to  them  by  the  Constitution.  At 
the  same  time  it  has  been  possible  to  punish 
in  an  effective  manner  lapses  from  judicial 
dignity  or  the  perversion  of  office  to  im- 
proper ends. 


CHAPTER  IV 

SELECTION  AND  TENURE  OF 
JUDGES 

The  tenure  of  office  and  mode  of  selection 
of  the  federal  judges  as  provided  by  the  con- 
vention of  1787  was  designed  to  establish  the 
judiciary  as  a  co-ordinate  and  independent 
department  of  government.  The  judges  were 
chosen  neither  by  the  will  of  one  individual 
nor  by  the  vote  of  one  branch  of  the  govern- 
ment, but  by  the  concurrent  wishes  of  the 
President  and  Senate.  They  held  their  offices 
not  at  the  pleasure  of  any  group,  but  by  the 
secure  tenure  of  their  own  good  behavior. 
The  federal  courts  were  thus  in  a  position  to 
decide  disputes  in  an  enlightened  and  im- 
partial manner,  and  to  pronounce  their  opin- 
ions without  fear,  favor,  or  partiality. 

In  marked  contrast  to  the  independence 
enjoyed  by  the  federal  courts,  the  judiciary 
in  the  several  States  continued  under  the 
legislative  domination  beneath  which  they 


156  JUDICIAL  TENURE  IN 

fell  in  the  revolutionary  constitutions.  In  a 
majority  of  the  States  judges  were  chosen  by 
the  popular  assemblies,  and  not  even  the 
action  of  the  convention  of  1787  in  joining 
the  executive  and  one  branch  of  the  legisla- 
ture in  the  selection  served  to  bring  about  a 
reform  in  this  respect.  Only  the  tenure  of 
office  during  good  behavior  assured  the  judges 
in  most  of  the  States  contributed  to  erect  the 
judiciary  as  a  respectable  branch  of  the 
government. 

The  security  of  the  judicial  office  so  ar- 
dently advocated  by  the  colonists  tended  to 
discourage  any  attempt  to  place  limitations 
upon  the  tenure  of  office  of  the  judges.  In 
nearly  all  of  the  States  tenure  during  good 
behavior  was  granted  the  judges,  even  before 
the  convention  of  1787  had  stamped  this 
standard  with  its  approval.  In  Pennsylvania 
where  a  term  of  years  was  provided  for  the 
judges  of  the  first  courts  established,  under 
the  influence  of  the  council  of  censors  a 
change  was  made  in  1790  to  the  more  secure 
tenure  during  good  behavior.1  Likewise  the 
new  States  of  Vermont,  Kentucky,  and  Ten- 
nessee, which  were  admitted  soon  after  the 

i  Thorpe:  Charters  and  Constitutions,  p.  3079. 


THE  UNITED  STATES  157 

ratification  of  the  federal  Constitution,  pro- 
vided for  their  judges  a  similar  tenure.2  In 
Georgia,  New  Jersey,  Rhode  Island,  and 
Connecticut  alone  were  short  term  commis- 
sions granted  the  judges.  While  legislative 
appointment  was  held  in  high  favor  as  af- 
fording the  best  method  of  selecting  judicial 
officers,  the  States  were  uniformly  satisfied 
that  a  tenure  during  good  behavior  was  suffi- 
cient to  insure  the  independence  of  the  courts. 
The  most  complete  subordination  of  the 
courts  to  legislative  control  was  attempted 
in  the  Ohio  constitution  of  1802.  The  grow- 
ing sentiment  of  democracy  which  stamped 
the  partisans  of  Thomas  Jefferson  permeated 
this  charter.  Legislative  control  not  merely 
of  the  judiciary  but  of  all  the  organs  of  gov- 
ernment was  its  chief  characteristic.  In  the 
East  such  notions  came  into  violent  conflict 
with  the  older  views,  but  west  of  the  Alle- 
ghenies  they  found  a  virgin  soil.  Under  this 
influence  the  people  of  Ohio  gave  their  gov- 
ernor no  power  of  veto,  entrusted  him  with 
no  appointments  to  office,  and  limited  the 
commissions  of  all  officers  to  a  fixed  term  of 
years.  The  judges  were  to  be  selected  by  the 

2  Thorpe:  pp.  1270,  3419,  3765. 


158  JUDICIAL  TENURE  IN 

legislature,  and  were  to  hold  office  for  a  term 
of  seven  years  "if  so  long  they  behave  well."3 
They  were  further  required  to  hold  a  supreme 
court  in  each  county  of  the  State  which  kept 
them  on  horseback  half  the  year  and  com- 
pelled them  to  give  decisions  in  frontier 
towns  where  no  law  books  could  be  had. 
Naturally  this  led  to  confusion  in  the  law.4 

It  soon  became  apparent  that  the  radical 
innovations  introduced  by  the  constitution  of 
1802  were  unwise.  Several  attempts  were 
made  by  the  legislature  to  modify  the  judi- 
ciary system,  but  in  1809  Governor  Hunting- 
ton  found  it  necessary  to  call  attention  to 
defects  which  still. existed  and  to  urge  their 
remedy.5  The  first  supreme  court  of  the 
State  is  said  to  have  been  composed  of  ex- 
ceptionally able  men,  yet  ' '  it  was  the  opinion 
of  the  bar  generally  that  the  judges  ought  to 
have  been  appointed  during  good  behavior. 
Serious  fears  were  entertained  that  the  short 
terms  of  their  offices  would  lead  to  a  want  of 
stability  and  uniformity  of  decisions;  and 

3  Thorpe :  p.  2908. 

*  Burnet :  Notes  on  the  Northwest  Territory  (Cincinnati, 
1847),  p.  356;  Debates  Ohio  Convention,  1850,  p.  597. 
»  House  Journal  (1808-1809),  pp.  196-199. 


THE  UNITED  STATES  159 

might  bring  them  under  the  influence  of 
leading  political  men.  Fears  were  also  en- 
tertained that  in  times  of  high  party  excite- 
ment judges  would  be  selected  rather  for 
their  opinions  than  for  their  legal  acquire- 
ments. "6  Except  for  the  Indiana  constitu- 
tion of  1816,  none  of  the  other  States  seems 
to  have  been  sufficiently  impressed  at  this 
time  with  the  short  term  commissions  for 
judicial  officers  to  embody  the  principle  in 
its  fundamental  law.7 

Following  the  decision  of  Chief  Justice 
Marshall  in  the  case  of  Marbury  v.  Madison 
the  growth  of  judicial  power  was  very  rapid. 
By  1818  the  power  of  the  courts  to  pass  upon 
the  constitutionality  of  legislation  had  be- 
come recognized  everywhere  except  in  Rhode 
Island,  and  judges  were  eagerly  following 
the  lead  of  the  supreme  court  of  the  United 
States  in  proclaiming  the  independence  of 
the  judicial  department.  The  doctrine  of 
judicial  review  as  stated  in  1814  by  Justice 
Woodbury  of  New  Hampshire  came  to  be  the 

eBurnet:  op.  cit.,  pp.  357-358. 
7  Thorpe:  p.  1066. 


160  JUDICIAL  TENURE  IN 

rule  adopted  for  the  guidance  of  courts  in 

every  State.8 

Obstacles  to  the  realization  of  the  power  of 
the  courts  to  set  aside  as  null  and  void  legis- 
lative enactments  were  encountered  in  greater 
degree  than  elsewhere  in  those  States  in 
which  the  judges  enjoyed  the  least  independ- 
ence. The  Ohio  judges  who  declared  uncon- 
stitutional an  act  of  the  legislature  were  im- 
peached. Although  they  were  acquitted,  the 
legislature  was  so  indignant  because  of  the 
assertion  of  judicial  power  that  they  pro- 
ceeded to  declare  vacant  the  offices  of  the  of- 
fending judges.9  At  the  same  time  the  house 
of  representatives  passed  a  resolution  "that 
the  judges  of  the  supreme  court  have  no  right 
to  set  aside  an  act  of  the  legislature,  under 
pretense  that  the  same  is  unconstitutional/' 
Such  power,  they  held,  is  neither  granted  in 
terms  by  the  constitution  nor  to  be  implied 
from  any  grant  contained  therein.  To  admit 
the  doctrine  of  judicial  review  would  ' i  render 
all  laws  dependent  on  the  arbitrary  will, 
whim,  or  caprice  of  the  judges,  and  would 
necessarily  introduce  perfect  anarchy  and 

8  Merrill  v.  Sherburne,  1  N.  H.  204. 
»  Supra,  p.  113. 


THE  UNITED  STATES  161 

confusion  into  the  government;  destroy  its 
fundamental  principles,  and  subvert  every 
principle  of  public  liberty.  "10  Despite  this 
remonstrance,  not  only  did  the  doctrine  of 
judicial  review  become  a  part  of  the  constitu- 
tional law  of  Ohio  but  a  new  legislature  a  few 
years  later  re-elected  for  two  successive 
terms  one  of  the  deposed  judges.11 

In  Georgia,  where  the  judges  were  chosen 
by  the  electorate  for  the  brief  term  of  three 
years,  the  supreme  court  asserted  its  power 
in  1815  and  set  aside  an  act  designed  to  stay 
the  execution  of  judgments  for  the  recovery 
of  debts.12  The  legislature  indignantly  re- 
sented the  interference,  and  denied  the  right 
of  the  judges  to  question  the  legality  of  its 
acts.  But  the  remonstrance  met  with  a 
strong  dissent  in  the  senate,  where  it  was 
objected  that  to  deny  to  the  judicial  depart- 
ment authority  to  pass  on  acts  of  the  legis- 
lature "was  to  confer  on  the  General  Assem- 
bly the  omnipotency  of  the  Parliament  of 
Great  Britain;  destroy  the  distinctive  char- 

10  House  Journal  (1808-1809),  pp.  146-158. 

11  Calvin  Pease  remained  upon  the  supreme  bench  until 
1822. 

12  Baldwin :   American  Judiciary,  p.   112. 


162  JUDICIAL  TENURE  IN 

acter  of  the  two  branches  of  government; 
put  the  legislature  above  the  courts,  remove 
the  last  check  on  legislative  tyranny  and 
oppression ;  and  leave  to  the  people  no  other 
alternative  than  insurrection  or  servile  obe- 
dience to  unconstitutional  acts."13  In  Con- 
necticut, where  the  courts  were  subordinated 
to  the  legislature,  there  seems  to  have  been 
only  one  case  of  judicial  review  prior  to  the 
adoption  of  the  constitution  of  1818.14  The 
dependence  of  the  judges  for  their  places  on 
the  annual  pleasure  of  the  general  assembly 
caused  much  dissatisfaction,  for  the  upper 
house  was  generally  composed  of  lawyers, 
whose  good  will  no  judge  could  afford  to  be 
wholly  unmindful  of  conciliating.15  During 
this  time  the  legislature  exercised  a  constant 
supervision  over  the  administration  of  jus- 
tice. In  1815  they  annulled  the  judgment  and 

is  McMaster:  History  of  the  People  of  the  United  States, 
v,  p.  400. 

"The  Symsbu.ry  Case,  Kirby  444  (1785).  In  this  case 
a  legislative  enactment  making  a  land  grant  was  not  set 
aside  as  null  and  void  but  was  merely  given  a  restricted 
construction  so  as  to  prevent  its  invading  a  previous  grant. 

«  Baldwin :  The  Three  Constitutions  of  Connecticut, 
Papers  of  New  Haven  Colony  Historical  Society,  v,  pp. 
226-227. 


THE  UNITED  STATES  163 

set  aside  the  sentence  pronounced  against  a 
murderer  convicted  in  the  superior  court. 
This  action  is  said  to  have  been  widely  con- 
demned and  is  believed  to  have  contributed 
in  no  small  degree  to  the  demand  for  the 
adoption  of  a  written  constitution.  It  was 
an  important  reform  of  the  constitutional 
convention  of  1818  when  it  placed  the  judges 
beyond  the  control  of  the  legislature  by 
granting  them  a  tenure  during  good  be- 
havior.16 

The  steady  growth  of  judicial  power 
alarmed  those  who  were  anxious  to  maintain 
the  supremacy  of  the  legislative  department. 
Although  they  could  not  deny  the  necessity 
of  the  power  of  review  in  the  hands  of  the 
courts,  the  opponents  of  the  judiciary  sought 
to  find  means  of  restraining  its  exercise  by 
the  judges.  Many  objected  that  the  judges 
were  become  "a  class  of  men  set  apart,  not 
simply  to  administer  the  laws,  but  who  ex- 
ercise a  legislative  and  even  an  executive 
power  directly  in  defiance  and  contempt  of 
the  constitution. ' m  In  Congress  the  fears 

ie  Trumbull :    Historical    Notes    on   the   Constitutions    of 
Connecticut  (Hartford,  1873),  p.  43. 
17  Aurora,  Jan.  28,  1805. 


164  JUDICIAL  TENURE  IN 

of  usurpation  by  "this  check  department  of 
the  government"  were  vividly  depicted.18 
President  Jefferson  was  bitter  in  his  denun- 
ciation of  Chief  Justice  Marshall  and  de- 
clared Marbury  v.  Madison  to  be  mere  obiter 
dicta  which  he  would  refuse  to  observe  as 
law.19  He  became  so  enraged  at  the  outcome 
of  the  trial  of  Aaron  Burr  that  he  gave  his 
approval  to  a  proposal  to  amend  the  Consti- 
tution to  limit  the  tenure  of  federal  judges 
to  a  term  of  years,  in  order  that  the  courts 
might  be  brought  under  control.20 

The  failure  to  subordinate  the  courts  to 
legislative  control  by  the  use  of  the  impeach- 
ment procedure,  together  with  their  inability 
to  secure  the  adoption  of  a  provision  for  the 
removal  of  federal  judges  on  legislative  ad- 
dress, caused  the  followers  of  Jefferson  great 
disappointment.    They  not  only  disapproved 
of  the  course  of  the  judiciary  but  really  be- 
lieved the  freedom  from  control  enjoyed  by 
the  judges  was  fraught  with  great  danger  to 
the   government.     Tenure   during  good  be- 
havior was  assailed  as  a  violation  of  the  fun- 
is  Annals,  7th  Cong.,  1st  Sess.,  p.  552. 
i»  Works  (ed.  Ford),  ix,  p.  53. 
20  Ibid.,  x,  p.  387. 


THE  UNITED  STATES  165 

damental  principles  of  American  govern- 
ment. In  support  of  this  contention,  Macon 
wrote  Jefferson : 

The  great  principle  of  the  American  govern- 
ments is  election  for  short  periods;  yet  in  most  of 
them  it  has  been  departed  from  in  the  judiciary. 
This  is  attempting  to  mix  principles  which  cannot 
be  united,  that  is  to  make  men  by  the  tenure  of 
office  independent  and  upright,  who  are  not  so 
from  nature  or  principle.  The  tenure  of  good 
behavior  is  a  violation  of  the  elective  principle. 
It  remains  to  be  determined  whether  govern- 
ments uniting  two  opposite  principles  will  go  on 
smoothly.21 

Jefferson  thought  "a  judge  independent  of 
a  king  or  executive  alone  is  a  good  thing ;  but 
independence  of  the  will  of  the  nation  is  a 
solecism,  at  least  in  a  republic  government. ' m 
At  the  same  time  he  again  urged  that  future 
appointments  be  for  four  or  six  years,  and 
renewable  by  the  President  and  Senate,  "in 
order  to  bring  their  conduct  at  regular  pe- 
riods under  revision  and  probation.  "23 

Opposition    to    the    exercise    of    judicial 

21  Jefferson  MSS.,  Feb.  2,  1822. 

22  Works  (ed.  Ford),  vii,  p.  192. 

23  Ibid.,  vii,  p.  256. 


166  JUDICIAL  TENURE  IN 

power  and  attempts  to  abridge  the  tenure  of 
judges  continued  to  excite  only  the  radical 
States'  rights  faction.  As  early  as  1817,  it 
was  declared  from  the  supreme  bench  of 
South  Carolina  that i  i  the  co-ordinate  author- 
ity of  the  judiciary  and  its  right  and  duty  to 
determine,  where  its  functions  involve  the 
question,  on  the  constitutionality  of  a  legis- 
lative act,  is  a  point  now  settled  by  the  judg- 
ment of  almost  every  respectable  judicial 
tribunal,  and  confirmed  by  the  approbation 
and  acquiescence  of  all  wise  and  sober  states- 
men in  the  union. '  '24  Madison  in  1830  in  de- 
fense of  the  federal  courts  declared : 

Occasional  decisions  there  have  been  from  the 
bench  which  have  incurred  serious  and  extensive 
disapprobation.  Still  it  would  seem  that,  with  but 
few  exceptions,  the  course  of  the  judiciary  has 
been  hitherto  sustained  by  the  predominant  sense 
of  the  nation.25 

So  general  was  the  satisfaction  with  the 
courts  that  when  the  attempt  was  made  in 
1831  to  secure  a  repeal  of  the  25th  section  of 
the  judiciary  act  of  1789,  only  fifty-one  mem- 
bers of  the  House  of  Eepresentatives  could 

24  Niles  Weekly  Eegister,  xii,  p.  248. 

25  Madison  MSS.,  Aug.  30,  1830. 


THE  UNITED  STATES  167 

be  found  to  support  the  measure.  All  but 
six  of  the  fifty-one  came  from  States  south 
of  the  Potomac  and  Ohio  rivers  and  were 
staunch  supporters  of  the  doctrines  of 
Thomas  Jefferson.26 

While  the  proposal  to  repeal  the  25th  sec- 
tion of  the  judiciary  act  of  1789  was  under 
consideration,  Mr.  Lecompte  introduced  in 
the  House  of  Representatives  a  proposition 
to  instruct  the  committee  on  the  judiciary 
"to  inquire  into  the  expediency  of  amending 
the  Constitution  of  the  United  States,  so  that 
judges  of  the  supreme  court  and  of  the  in- 
ferior courts  shall  hold  their  respective 
offices  for  a  term  of  years."  The  proposal 
was  rejected  by  a  vote  of  115  to  61.  Among 
those  who  voted  for  the  resolution  are  to  be 
found  nearly  all  of  the  fifty-one  who,  upon 
the  following  day,  voted  in  favor  of  the  re- 
peal of  the  25th  section.27  In  the  next  session 
of  Congress,  Mr.  Lecompte  again  brought 
forward  his  proposition,  but  could  muster 
only  twenty-seven  votes  in  its  favor.28  Fur- 
ther attacks  upon  the  federal  judiciary  were 

26McMaster:  op.  cit.,  vi,  p.  61. 

27  Debates,  21st  Cong.,  2d  Sess.,  p.  540. 

28  Ibid.,  22d  Cong.,  1st  Sess.,  p.  1856. 


168  JUDICIAL  TENURE  IN 

thereupon  abandoned,  and  since  that  time  no 
serious  effort  has  been  made  to  alter  the 
tenure  of  judges  of  the  courts  of  the  United 
States. 

I 

While  the  federal  courts  were  becoming 
established  on  an  independent  basis  which 
thwarted  all  attempts  to  subject  them  to  leg- 
islative control,  in  the  States  popular  senti- 
ment with  regard  to  the  judicial  office  had 
undergone  a  profound  change.  It  has  usually 
been  assumed  that  the  wave  of  democracy 
which  spread  over  the  country  after  1824, 
and  which  swept  Andrew  Jackson  and  his 
partisans  into  power,  was  responsible  for  the 
new  attitude  toward  the  courts.  Judges  had 
for  the  most  part  ceased  to  exhibit  the  high- 
handed and  arrogant  attitude  which  charac- 
terized the  colonial  judiciary  and  which  a  few 
judges  like  Addison  had  sought  to  adopt  in 
the  early  State  courts.29  Yet  there  was  a  well- 
defined  feeling  in  many  States  that  the  courts 
were  undemocratic  and  this  was  thought  due 
to  the  long  tenure  granted  the  judges  which 
seemed  to  establish  them  as  a  privileged 
class.  At  the  same  time  the  power  of  ap- 

2»  Supra,  p.  46. 


THE  UNITED  STATES  169 

pointment  vested  in  the  legislature  or  in  the 
governor  and  legislature  was  subject  to  great 
abuse.  Although  the  courts  were  not  with- 
out their  defenders,  it  became  apparent  that 
the  judicial  system  in  many  of  the  States 
must  undergo  a  complete  transformation 
both  wTith  respect  to  the  tenure  of  judges  and 
the  mode  of  their  selection.30 

This  reaction  against  the  judiciary  which 
arose  shortly  before  the  middle  of  the  nine- 
teenth century  presented  a  very  different 
aspect  from  the  attacks  made  on  the  courts 
during  the  first  administration  of  Jefferson. 
Although  it  came  at  a  time  when  legislative 
power  was  on  the  increase,  there  was  no  de- 
mand for  the  subordination  of  the  judiciary 
to  legislative  control.  Leaders  of  the  Jack- 
sonian  epoch  would  have  regarded  as  too 
centralizing  in  its  effect  the  political  theory 
so  dominant  in  the  earlier  period. 

In  Virginia  alone  the  surviving  members 
of  the  radical  group  which  had  led  the  as- 
sault upon  Justice  Chase  sought  the  estab- 
lishment of  legislative  control.  The  consti- 
tutional convention  of  1830  was  dominated 
by  the  men  who  had  been  the  active  oppo- 

so  Breckinridge :  op.  cit.,  p.  42. 


170  JUDICIAL  TENURE  IN 

nents  of  the  federal  judiciary  in  1805.  Wil- 
liam Branch  Giles  as  governor  of  the  State 
was  a  leading  figure,  as  was  also  John  Ran- 
dolph. Judge  Roane,  whose  pamphlet  at- 
tacks on  the  federal  judiciary  were  not  less 
bitter  than  the  political  action  of  partisan 
friends,  was  another  member.  But  John 
Marshall  was  also  present,  and,  although  en- 
feebled with  age,  by  his  calm  and  logical 
arguments  more  than  once  restrained  the 
fiery  Giles. 

The  view  that  judges,  although  commis- 
sioned during  good  behavior,  might  be  legis- 
lated out  of  office  by  the  abolition  of  their 
courts  was  brought  forward  by  Giles.  He 
argued  for  a  power  in  the  legislature  to  make 
alterations  in  the  number  and  organization 
of  the  courts  regardless  of  the  effect  such 
changes  might  have  upon  the  incumbents  in 
office.  He  could  not  admit  that  the  good  be- 
havior tenure  guaranteed  the  judges  should 
in  any  way  fetter  the  legislature  in  abolish- 
ing a  particular  court.  Judges  should  con- 
tinue in  office,  he  thought,  only  so  long  as  the 
office  to  which  they  had  been  appointed  was 
permitted  to  exist.  Let  the  legislature  abol- 
ish a  judicial  office  and  the  commission  of  the 


THE  UNITED  STATES  171 

judge  expired  with  the  court.  This  conten- 
tion was  ably  resisted  by  Chief  Justice  Mar- 
shall, but  without  avail.  The  convention  by 
a  majority  of.  eight  votes  refused  to  provide 
for  the  continuance  of  a  judge  in  office  after 
his  court  had  been  modified  or  abolished.31 
Thus  Giles  secured  in  Virginia  the  adoption 
of  a  theory  of  judicial  office  for  which  he  had 
labored  so  strenuously  in  the  federal  govern- 
ment a  quarter  of  a  century  earlier. 

Elsewhere  the  demand  was  for  the  adop- 
tion of  such  expedients  as  would  render  the 
judiciary  more  immediately  responsible  to 
the  people.32  Unlimited  tenure  was  declared 
to  promote  carelessness,  indolence  and  tyran- 
nical feelings  on  the  part  of  judges  and  to 
beget  a  want  of  courtesy  to  the  bar  and  to  the 
people.33  The  mode  of  selection  by  the  legis- 
lature or  by  the  governor  and  the  legislature 
was  widely  condemned  as  introducing  the 
evils  of  party  politics  into  judicial  appoint- 
ments. It  was  openly  asserted  that  judicial 
places  were  become  the  spoils  of  partisan 
conflict  and  that  selections  were  made  not  on 

si  Debates  Virginia  Convention,  1830,  pp.  726-731. 

32  Debates  Pennsylvania  Convention,  1838,  x,  p.  181. 

33  Ibid.,  x,  p.  211. 


172  JUDICIAL  TENUEE  IN 

account  of  ability  and  fitness  but  as  rewards 
for  political  services.  To  overcome  this  evil 
the  selection  of  judges  directly  by  the  elec- 
torate was  declared  to  be  the  qnly  remedy.34 

In  the  newer  sections  of  the  country  the 
reaction  against  the  judiciary  may  be  traced 
to  the  attitude  of  the  courts  toward  the 
debtor  classes.  It  must  be  remembered  that 
on  the  frontier  capital  was  scarce  and  rates 
of  interest  were  high.  At  the  same  time  the 
legislatures  were  restrained,  either  by  the 
federal  Constitution  or  by  limitations  im- 
posed by  the  fundamental  laws  of  the  States, 
from  offering  adequate  relief  to  debtors. 
The  courts  in  their  administration  of  justice 
seemed  to  bear  hardly  on  the  poor  and  to 
stand  as  a  bulwark  to  the  rich. 

The  struggle  over  the  judiciary  in  Ken- 
tucky during  the  twenties  is  so  well  known 
that  extended  consideration  of  the  situation 
is  unnecessary.35  The  legislature  in  1820 
enacted  legislation  designed  to  afford  an  easy 
method  of  release  from  the  obligations  which 

3*  See  especially  Debates  Ohio  Convention,  1850,  i,  pp. 
66,  67;  Debates  Maryland  Convention,  1851,  ii,  pp.  461-464. 

SB  Haines :  American  Doctrine  of  Judicial  Supremacy, 
pp.  231-235;  McMaster:  op.  cit,  v,  pp.  162-166;  Breckin- 
ridge:  op.  cit.,  pp.  78-82. 


THE  UNITED  STATES  173 

were  burdening  the  debtor  class  of  the  State. 
When  these  acts  were  contested  in  the  State 
courts,  they  were  set  aside  as  being  uncon- 
stitutional. Vigorous  opposition  was  at  once 
voiced  throughout  the  State,  and  an  attempt 
was  made  to  remove  from  office  Judge  Clark 
who  had  handed  down  the  obnoxious  decision. 
Failing  in  this,  the  legislature  organized  a 
new  court  of  appeals  and  the  issue  was  taken 
up  by  the  politicians.  The  confusion  was 
gradually  resolved  and  the  question  soon 
passed  out  of  Kentucky  politics.36 

In  Alabama  more  lasting  results  followed 
the  outburst  of  dissatisfaction  with  the  en- 
forcement of  legislation  affecting  the  debtor 
class.  Decisions  of  the  supreme  court  of  the 
State  between  1824  and  1830  permitted,  under 
certain  conditions,  a  rate  of  interest  on  con- 
tracts as  high  as  five  per  cent,  per  month  and 
allowed  a  regular  rate  of  interest  at  eight  per 
cent,  per  annum.  Much  feeling  was  aroused 

36  Collins:  History  of  Kentucky,  i,  p.  218  et  seq.  See 
also  Phelan:  History  of  Tennessee,  p.  301.  In  Tennessee 
the  convention  of  1834  abolished  tenure  during  good  be- 
havior for  the  judicial  office  because  of  the  feeling  that 
the  judges  had  become  too  high-handed  and  overbearing. 
This  action  followed  closely  upon  two  judicial  impeach- 
ments undertaken  by  the  legislature. 


174  JUDICIAL  TENURE  IN 

and  repeated  demands  for  changes  in  the 
judicial  system  were  heard.37  The  legislature 
accordingly  in  1830  submitted  to  the  people, 
and  the  people  approved,  an  amendment 
limiting  the  tenure  of  office  of  judges  to  six 
years.  But  it  was  provided  that  the  judges 
then  on  the  bench,  who  had  been  chosen  for 
unlimited  terms,  might  remain  in  office  until 
1833.38  This  marked  the  beginning  of  the 
movement  to  limit  the  tenure  of  judges  of  the 
States  to  a  term  of  years. 

A  few  years  later  the  supreme  court  of 
Maine  brought  upon  itself  adverse  criticism 
as  the  result  of  an  opinion  construing  acts 
of  the  legislature  for  the  relief  of  poor 
debtors.39  A  resolution  was  passed  by  the 
legislature  in  March,  1839,  and  submitted  to 
the  people  in  September  of  that  year,  pro- 
viding that  "judges  should  hold  office  for 
seven  years,  if  not  sooner  disqualified. '  >4° 
The  courts  in  each  instance  seem  to  have  de- 
cided in  accordance  with  the  law,  but  con- 

37  Henry  v.  Thompson,  1  Minor  209  (1824) ;  Ellis  v.  Bibb, 
2  Stewart  63  (1829).  See  also  Niles  Weekly  Register,  xv, 
p.  43. 

ss  Brown :  History  of  Alabama,  pp.  156-157. 

«»  Knight  v.  Norton,  15  Maine  Rep.  337. 

<o  Law  Reporter,  i,  pp.  246,  340. 


THE  UNITED  STATES  175 

trary  to  public  opinion.  Nevertheless,  the 
course  of  conduct  of  the  judges  was  disap- 
proved so  generally  that  it  became  inevitable 
that  some  change  in  the  arrangement  of  the 
judicial  office  would  be  made. 

Dissatisfaction  with  the  courts  in  a  number 
of  the  older  States  arose  because  of  the  slow- 
ness with  which  the  judges  handed  down  de- 
cisions in  important  cases.  Governor  Marcy 
of  New  York  repeatedly  called  attention  to 
the  fact  that  the  courts  were  at  least  two 
years  behind  with  the  cases  on  their  dockets. 
Yet  it  was  admitted  that  the  number  of 
judges  on  the  supreme  bench  was  insufficient 
to  handle  the  amount  of  business  before 
them.41  The  Pennsylvania  judges  were  ac- 
cused of  indolence  and  a  want  of  sympathy 
with  the  popular  will,  which  was  attributed 
to  the  unlimited  tenure  granted  them  by  the 
constitution  of  1790.  A  change  to  a  term  of 
fifteen  years  was  urged  in  order  that  they 
"  might  return  to  the  virtuous  institutions  of 
which  they  were  wrongfully  deprived  by  the 
act  of  usurpation  of  1790.  "42 

In  the  Maryland  convention  of  1851  both 

*i  Proceedings  New  York  Convention,  1846,  p.  370  et  seq. 
42  Debates  Pennsylvania  Convention,  1838,  x,  p.  ]93. 


176  JUDICIAL  TENURE  IN 

the  tenure  of  office  during  good  behavior  and 
the  method  of  selection  by  the  governor  and 
the  legislature  were  blamed  for  defects  in 
the  judicial  system.  Unlimited  tenure  was 
declared  "not  consistent  with  the  progressive 
spirit  of  the  age"  and  the  mode  of  selection 
was  condemned  as  having  placed  upon  the 
bench  unfit  men.  The  appointing  power  was 
declared  to  be  "a  great  political  engine,  by 
which  the  interests  of  a  large  portion  of  the 
people  of  the  State  have  been  sacrificed  to 
the  elevation  of  others."  The  governor  was 
charged  with  having  "placed  on  the  bench 
old  and  infirm  men  not  fit,  either  mentally  or 
physically,  to  perform  the  duties  which  the 
constitution  or  the  public  exigencies  require 
of  them."  Seldom,  it  was  asserted,  had  the 
appointment  failed  to  depend  more  or  less 
on  the  political  complexion  of  the  applicant.43 
Whatever  may  have  been  the  causes  which 
induced  particular  States  to  abolish  the 
tenure  during  good  behavior,  the  movement 
spread  rapidly  throughout  the  entire  country. 
Following  the  lead  of  Alabama,  Mississippi 
in  1832  altered  the  tenure  of  judges  in  that 
State  to  a  term  of  six  years.  Between  that 

43  Debates  Maryland  Convention,  1851,  pp.  461,  490. 


THE  UNITED  STATES  177 

date  and  the  outbreak  of  the  Civil  War  in  no 
less  than  twenty-one  States  was  the  term  of 
the  judicial  office  limited  to  a  period  of 
years.44  Many  of  the  changes  occurred  in  the 
new  constitutions  which  were  adopted  in  the 
western  States  as  they  gained  admission  to 
the  Union.  These  States  uniformly  pre- 
ferred a  term  of  four  or  six  years,  but  it  is  a 
striking  feature  of  constitutional  develop- 
ment in  the  older  States  that  they  embodied 
similar  changes  in  their  reconstructed  char- 
ters. 

In  not  all  of  the  States  whose  conventions 
urged  changes  in  the  tenure  of  judges  were 
the  people  found  ready  to  accept  the  reforms. 
The  Massachusetts  convention  of  1853  gave 
extended  consideration  to  an  amendment  to 
limit  the  tenure  of  judges  of  the  supreme 
court  to  ten  years  and  the  measure  was  finally 
carried  by  a  large  majority.  It  was  the  view 
of  the  convention  that  a  judge  who  showed 
great  ability  and  fitness  for  judicial  office 
would  invariably  be  re-elected,  while  a  judge 

«  Ala.  1830;  Miss.  1832;  Term.  1834;  Mich.  1835;  Ark. 
1836;  Pa.  1838;  Me.  1839;  Tex.,  La.  1845;  N.  Y.,  la.  1846; 
Fla.,  Mo.,  Wis.  1848;  Cal.  1849;  Ky.,  Va.  1850;  Md.  1851; 
Kan.  1855;  Ore.,  Minn.  1857. 


178  JUDICIAL  TENURE  IN 

who  had  proved  unfit  might  be  eliminated.45 
But  the  people  of  the  State  thought  other- 
wise, and  the  proposed  change  was  rejected 
when  submitted  for  popular  ratification. 

The  Massachusetts  experience,  however,  is 
an  exception,  for  the  debates  of  the  few  con- 
stitutional conventions  of  the  period  which 
are  available  show  a  marked  preference  on 
the  part  of  the  delegates  for  judicial  tenure 
during  a  limited  term  of  years.  And  it  was 
the  general  practice  for  popular  ratification 
to  stamp  with  approval  the  work  of  the  con- 
ventions in  this  respect.  Eegardless  of  the 
causes  leading  to  each  proposal  to  limit  the 
tenure  of  judges,  the  practice  came  into  high 
favor  as  being  in  harmony  with  American 
ideas  and  institutions. 

The  abolition  of  tenure  during  good  be- 
havior for  the  judicial  office  was  closely  fol- 
lowed by  the  application  of  the  elective  prin- 
ciple in  the  selection  of  judges.  Frontier  life 
had  taught  the  people  the  virtues  of  self- 
reliance,  independence  and  individuality. 
They  firmly  believed  in  the  sovereignty  of 

«  Address  of  George  S.  Boutwell  to  the  People  of  Berlin 
(Boston,  1853),  p.  12.  See  also  Debates  Massachusetts  Con- 
vention, 1853. 


THE  UNITED  STATES  179 

the  people  and  in  the  necessity  of  giving  to 
the  mass  of  the  population,  as  far  as  possible, 
the  direction  of  public  affairs.46  It  was  de- 
clared that  since  sovereignty  is  vested  in  the 
people  the  less  power  they  allowed  to  pass 
from  their  hands  the  better  government 
would  prosper. 

Popular  election  was,  therefore,  hailed  as 
a  device  highly  in  accord  with  the  dominant 
political  theory  of  the  day.  In  the  eyes  of 
Jackson  and  his  partisans  there  was  no  office 
te  which  the  elective  principle  might  not  be 
applied.  Expertness  and  qualification  for 
office  were  less  important  considerations  than 
popular  interest  in  government.  And  popu- 
lar interest,  it  was  assumed,  could  only  be 
secured  by  having  the  people  exercise  a  direct 
control  in  governmental  affairs. 

The  movement  to  secure  the  popular  elec- 
tion of  judges  had  in  most  States  a  sounder 
basis  than  that  of  abstract  political  theory. 
Like  the  reaction  against  tenure  during  good 
behavior  the  dissatisfaction  in  many  instances 
rested  upon  abuses  in  the  existing  system. 
Whether  the  choice  was  made  by  the  gov- 
ernor, by  and  with  the  advice  and  consent  of 

46  Merriam :  American  Political  Theories,  ch.  v. 


180  JUDICIAL  TENURE  IN 

one  branch  of  the  legislature,  or  by  the  legis- 
lature alone,  the  rise  of  political  parties  had 
exerted  a  profound  influence  upon  the  select- 
ing authority.  In  Ohio,  where  the  judges 
were  chosen  by  joint  vote  of  the  two  houses, 
it  was  said  that  the  legislature  had  become 
1  i  a  mere  political  arena,  embittering  the  feel- 
ings of  party  spirit,  and  corrupting  the, pure 
fountain  of  justice.  "47  The  people  of  Ten- 
nessee in  1853  made  their  judges  elective 
after  a  long  period  of  dissatisfaction  with  the 
judiciary  during  which  at  least  two  removals 
on  impeachment  were  effected.48  In  many  of 
the  States  where  the  governor  was  associated 
with  the  legislature  in  the  appointment,  nomi- 
nations were  made  by  caucus  of  the  dominant 
party  and  no  nomination  thus  made  ever 
failed  to  receive  the  approval  of  the  selecting 
authority.49  Thus  not  only  were  the  judges 
removed  from  popular  control  but  they  were 
in  the  hands  of  those  who  sought  to  use  the 
judicial  office  for  partisan  ends. 

47  Debates  Ohio  Convention,  1850,  i,  p.  66.  See  also 
Debates  Iowa  Convention,  1857,  i,  pp.  227,  263. 

«Phelan:  History  of  Tennessee,  pp.  201,  301. 

4»  Proceedings  New  York  Convention,  1846,  pp.  103-104; 
Debates  Kentucky  Convention,  1850,  p.  168  et  seq.;  Debates 
Maryland  Convention,  1851,  ii,  p.  490. 


THE  UNITED  STATES  181 

The  adoption  of  popular  election  for  the 
judges  of  the  supreme  court  of  Mississippi 
in  1832  marked  the  beginning  of  the  change 
in  the  mode  of  selection.  Mississippi  thus 
stands  as  the  first  State  to  accept  both  popu- 
lar election  and  limited  tenure  for  judges  of 
the  court  of  last  resort.  But  the  application 
of  the  elective  principle  was  less  easily  car- 
ried in  the  States  than  the  abolition  of  good 
behavior  tenure.  It  was  not  until  New  York 
in  1846  altered  its  constitution  to  give  to  the 
people  the  choice  of  judges  that  the  expedient 
of  popular  election  secured  widespread  ac- 
ceptance. With  the  leading  State  in  the 
Union  in  the  advance,  no  less  than  seventeen 
States  in  the  following  eleven  years  gave  to 
the  electorate  the  choice  of  judges.  By  1857 
an  elective  judiciary  was  declared  to  be  the 
type  most  desirable  for  the  States,50  and  at 
the  beginning  of  the  Civil  War  the  system 
stood  in  nineteen  of  the  thirty-four  State 
constitutions.51 

The  alteration  of  the  judicial  system  in 

50  Debates  Minnesota  Convention,  1857,  p.  495. 

si  Ga.  1777;  Miss.  1832;  N.  Y.  1846;  Wis.  1848;  Cal. 
1849;  Ky.,  Mich.,  Mo.,  Pa.,  Va.  1850;  Ind.,  Md.,  Ohio  1851; 
La.  1852;  Tenn.  1853;  Kan.  1855;  la.,  Minn.,  Ore.  1857. 


182  JUDICIAL  TENUEE  IN 

most  of  the  States  was  completed  without 
serious  opposition.  The  more  conservative 
States  which  refused  to  change  either  the 
tenure  of  judges  or  the  mode  of  their  selec- 
tion were  greatly  in  the  minority,  including 
mainly  the  smaller  States  of  the  Atlantic  sea- 
board like  Connecticut,  New  Hampshire,  New 
Jersey  and  Delaware.  But  in  them  no  great 
dissatisfaction  with  the  courts  was  evinced 
nor  did  popular  opinion  crystallize  in  favor 
of  radical  governmental  changes  of  any  kind. 
Nevertheless  there  were  many  who  predicted 
that  evil  effects  would  result  from  the  inno- 
vations, and  one  critic  of  the  New  York  con- 
stitution of  1846  thought  "that  before  many 
years  another  convention  would  be  called  to 
reform  some  of  the  late  reforms."52  This 
prophecy  was  fulfilled  when,  in  1876,  an 
amendment  was  passed  lengthening  the  term 
of  the  New  York  judges  from  eight  to  four- 
teen years.53  In  Pennsylvania  the  term  of 
eight  years  provided  by  the  constitution  of 
1838  was  found  equally  unsatisfactory,  and 
was  extended  in  1873  to  twenty-one  years 
with  a  provision  rendering  the  judges  ineli- 

52  Law  Keporter,  x,  p.  95. 
63  Thorpe:  p.  2693. 


THE  UNITED  STATES  183 

gible  to  re-election.54  The  marked  tendency 
in  constitution  making  since  the  Civil  War 
has  been  to  extend  the  tenure  of  State  judges. 
This  has  been  done  in  eight  States,  where 
the  changes  have  resulted  in  lengthening  the 
term  from  four  to  six  years.55  The  average 
term  has  thus  been  increased  from  four  to 
seven  years  to  from  eight  to  fifteen  years. 

The  selection  of  judges  by  direct  vote  of 
the  people  has  continued  in  vogue  in  every 
State  but  one  where  it  has  once  secured 
adoption.  Georgia  in  1865  abandoned  the 
choice  of  judges  by  popular  election  in  favor 
of  their  selection  by  joint  vote  of  the  two 
houses  of  the  legislature.50  Immediately 
after  the  Civil  War,  Mississippi,  Louisiana, 
and  Texas  in  framing  new  constitutions 
vested  the  choice  of  judges  in  the  governor, 
but  all  have  now  returned  to  the  mode  of 
popular  election.57  The  same  evils  that  arose 

o*  Thorpe:  p.  3133. 

55  Miss.  1868;  Pa.  1873;  Mo.  1875;  N.  Y.  1876;  Wis. 
1877;  Cal.,  La.  1879.  Connecticut  in  1876  limited  the  term 
of  judges  to  four  years  but  extended  it  in  1880  to  eight 
years. 

c«  Thorpe:  p.  818. 

57  Mississippi  in  1868  adopted  the  appointive  system  but 
abandoned  it  in  1914.  Louisiana  in  1864  adopted  the  ap- 


184  JUDICIAL  TENUEB  IN 

under  the  indirect  methods  of  selection  have 
developed  under  the  system  of  an  elective 
judiciary.  Politicians  have  manipulated  the 
popular  elections  as  easily  as  they  once 
directed  the  balloting  in  the  legislatures  or 
coerced  the  governor  of  a  dominant  party  in 
making  an  appointment.  Non-partisan  bal- 
lots and  the  separation  of  judicial  from  the 
general  elections  have  reduced  but  have  not 
destroyed  partisan  control  of  the  mode  of 
selection. 

All  attempts  to  supplant  the  mode  of  popu- 
lar election  for  the  choice  of  judges  have 
failed.  The  New  York  constitutional  con- 
vention of  1915  gave  extended  consideration 
to  proposals  to  vest  the  choice  of  judges 
in  the  governor  alone.  The  members  of 
the  legal  profession  from  the  urban  dis- 
tricts at  least  favored  an  appointive  judi- 
ciary. But  the  laity,  especially  in  the  rural 
districts,  appeared  irrevocably  opposed  to 
any  change  in  the  mode  of  selection.  The 
professional  politicians  were  equally  vigor- 
ous in  their  opposition  to  the  adoption  of  the 

pointive  system  but  returned  to  choice  by  popular  election 
in  1904,  while  Texas  retained  the  appointive  system  from 
1868  to  1876. 


THE  UNITED  STATES  185 

appointive  system.  The  Tammany  Society 
presented  a  memorial  in  which  they  declared 
"the  power  of  selecting  judges  should  never 
be  placed  in  the  hands  other  than  those  of 
the  people  themselves."58  After  the  subject 
had  been  fought  out  in  the  convention  the 
friends  of  the  appointive  judiciary  conceded 
that  victory,  if  it  ever  conies  to  them,  will 
be  in  the  remote  future.59 

The  selection  of  federal  judges  by  any 
other  means  than  that  now  in  vogue  has  gen- 
erally been  regarded  as  impracticable.  Dur- 
ing the  first  ninety  years  of  our  history  only 
four  propositions  were  introduced  in  Con- 
gress looking  toward  any  change  in  the  mode 
of  selection.60  In  recent  years  a  few  resolu- 

ss  Kecord  New  York  Convention,  1915,  i,  p.  370. 

59  See  proposition  of  the  New  York  Short  Ballot  Asso- 
ciation offered  as  a  compromise.  The  plan  provides  for  non- 
partisan  ballot  with  nominations  by  petition.  But  the  gov- 
ernor is  permitted  to  make  one  nomination  for  each  judicial 
office.  After  the  name  of  each  person  so  nominated  the 
ballot  will  bear  the  words  ' '  Kecommended  by  the  Governor. » ' 
It  is  expected  that  the  governor 's  selection  under  this  system 
will  be  good  enough  to  escape  serious  criticism  and  will  go 
through  to  a  unanimous  election  unopposed.  The  prestige 
of  the  governor's  backing,  it  is  thought,  will  be  of  benefit 
to  his  nominee  and  thus  discourage  unwarranted  opposition. 

eo  Ames :  Proposed  Amendments  to  the  Constitution,  pp. 
146-147. 


186  JUDICIAL  TENURE  IN 

tions  have  been  introduced  designed  to  pro- 
vide for  the  election  of  judges  of  the  inferior 
courts  by  the  voters  in  the  several  judicial 
districts,  but  none  of  the  measures  has  re- 
ceived serious  consideration.61 

II 

Age  limits  at  which  judicial  officers  must 
retire  have  never  been  popular  in  American 
governments.  The  first  constitution  of  New 
York  provided  for  the  retirement  of  judges 
at  the  age  of  sixty  years,  but  Hamilton  "be- 
lieved there  were  few  who  did  not  disapprove 
of  this  provision/762  Although  he  thought 
the  danger  from  a  superannuated  bench 
purely  imaginary,  the  clause  was  retained 
and  forced  the  retirement  of  Chancellor  Kent 
at  the  height  of  his  mental  vigor.  An  amend- 
ment was  then  passed  placing  the  age  of  re- 
tirement at  seventy  years.  For  a  time  the 
expedient  of  an  age  limit  for  the  judicial 
office  seemed  to  meet  with  favor.  Mississippi, 
Alabama,  and  Missouri  placed  limitations  in 
their  first  constitutions  which  provided  that 

ei  See  for  example  63d  Cong.,  1st  Sess.,  H.  J.  Kes.  17. 
«2  Federalist,  Ixxix. 


THE  UNITED  STATES  187 

no  judge  should  be  appointed  to,  or  continue 
in,  office  after  he  had  reached  the  age  of 
sixty-five  years.  But  the  only  States  which 
have  continued  to  follow  the  example  set  by 
New  York  are  Connecticut  and  Maryland.  In 
both  of  these  States  the  age  of  retirement 
from  the  judicial  office  is  fixed  at  seventy 
years.63 

The  adoption  of  the  principle  of  retiring 
judges  at  the  age  of  seventy  was  advocated 
both  in  the  Virginia  convention  of  1829  and 
in  that  held  in  Massachusetts  in  1853.  In 
neither  convention  was  the  measure  success- 
ful in  passing,  although  it  found  warm  sup- 
porters in  Virginia.  The  argument  for  the 
proposal  rested  on  the  ground  that  the 
remedy  of  removal  on  address  being  the  only 
means  of  ridding  the  bench  of  superannuated 
judges,  great  danger  threatened  the  common- 
wealth. But  remembering  the  services  of 
Wythe,  Pendleton,  and  Roane,  who  had 
adorned  the  supreme  bench  in  Virginia  long 
after  they  would  have  been  retired  had  the 
age  limit  in  vogue  in  New  York  prevailed, 

es  Thorpe:  pp.  543,  1727. 


188  JUDICIAL  TENURE  IN 

the  convention  rejected  the  proposed  altera- 
tion.64 

Several  attempts  have  been  made  to  pre- 
scribe an  age  limit  for  federal  judges.  The 
first  of  these  was  in  1809  in  connection  with 
a  proposition  to  have  the  judges  removable 
on  address,  and  proposed  that  judges  should 
not  continue  in  office  after  they  had  attained 
the  age  of  sixty-five  years.  A  second  at- 
tempt was  made  in  1826  by  Mr.  Eastman  of 
New  Hampshire,  who  sought  to  have  the 
judges  retire  upon  reaching  the  age  of 
seventy  years,  and  in  1835  a  motion  was  made 
"to  inquire  at  what  age  judges  shall  be  ren- 
dered incompetent  to  serve.  "65 

After  the  close  of  the  Civil  War  the  agita- 
tion for  the  adoption  of  age  limits  for  the 
retirement  of  federal  judges  was  renewed. 
On  February  13,  1869,  Mr.  Ashley  in  the 
House  of  Eepresentatives  offered  a  resolution 
proposing  as  an  amendment  to  the  Consti- 
tution that  judges  should  hold  office  for 
twenty  years,  retire  at  seventy  years  of  age, 

««  Debates  of  the  Virginia  Convention,  1829-1830,  pp. 
731-740. 

65  Ames:  op.  cit.,  p.  152. 


THE  UNITED  STATES  189 

and  receive  a  pension.    In  explanation  of  his 
proposal,  he  said : 

I  wish  the  court  were  what  it  ought  to  be  now. 
If  gentlemen  will  take  the  trouble  to  go  into  the 
supreme  court  they  will  find  there  men  passing 
upon  questions  of  the  gravest  magnitude  who  are 
utterly  unfit  for  the  discharge  of  such  responsi- 
bilities and  important  duties  as  are  almost  daily 
devolving  upon  them.  It  is  well  known  that  for 
some  time  before  Judge  McLean's  death  his  asso- 
ciates on  the  bench  at  the  request  of  friends  re- 
lieved him  of  all  responsible  labor  in  the  prepara- 
tion of  opinions.  Though  sleeping  upon  the  bench 
during  the  greater  part  of  the  time  the  court  was 
in  session,  and  dying  with  age,  he  was  almost  daily 
voting  upon  questions  of  the  gravest  character.08 

The  contention  of  Mr.  Ashley  that  the  su- 
preme bench  was  encumbered  with  judges 
who  had  outlived  their  usefulness  everyone 
was  willing  to  believe  when,  in  the  following 
year,  Justice  Greer  was  forced  to  resign  by 
his  colleagues  because  he  was  no  longer  able 
to  consider  intelligently  the  questions  which 
came  before  the  court.  The  inconsistent  be- 
havior of  the  judge  in  attempting  to  change 

«e  Globe,  40th  Cong.,  3d  Sess.,  App.,  p.  210.  See  also  an 
article  by  Mr.  Ashley  in  the  Arena  for  October,  1895. 


190  JUDICIAL  TENURE  IN 

his  vote  on  the  Legal  Tender  Cases  confirmed 
the  belief  that  he  had  become  so  aged  and 
infirm  as  to  be  unable  to  understand  the  ques- 
tion on  which  he  was  voting.  Every  judge  on 
the  bench  thereupon  expressed  to  him  the 
opinion  that  he  should  resign.67 

The  possibility  of  a  federal  judge  remain- 
ing upon  the  bench  after  he  has  become  un- 
fitted by  age  for  the  performance  of  judicial 
duties  has  been  reduced  by  the  act  of  April 
10,  1869,  which  provides  that  judges  of  the 
courts  of  the  United  States  may  retire  on 
full  pay  at  the  age  of  seventy  years,  after  ten 
years  of  service.68  Furthermore,  in  the  case 
of  justices  of  the  supreme  court,  Congress 
has  been  ready  to  vote  a  pension  to  incum- 
bents who  have  been  stricken  with  serious 
illness  and  have  been  unable  to  perform  the 
duties  of  their  office  even  though  they  had 
not  reached  the  age  limit  nor  attained  the 
years  of  service  required  by  the  act  of  1869. 
This  was  done  in  1910  in  the  case  of  Justice 
Moody,  and  the  precedent  would  unquestion- 
ably have  been  followed  more  recently  in  the 

87  J.  P.  Bradley:  Miscellaneous  Writings,  pp.  73-74. 
esKevised  Statutes  (1878),  Sec.  714. 


THE  UNITED  STATES  191 

case  of  Justice  Lamar  had  death  not  over- 
taken him  before  Congress  could  act. 

Notwithstanding  the  provisions  thus  made 
by  the  act  of  1869  for  the  voluntary  retire- 
ment on  full  pay  of  federal  judges,  some  in- 
cumbents have  retained  their  places  after 
they  have  lost  the  vigor  necessary  to  success- 
ful judicial  service.  Attorney-General  Mc- 
Keynolds  in  1913  thought  the  evil  which  re- 
sulted from  the  presence  of  superannuated 
judges  upon  the  bench  so  great  as  to  require 
the  attention  of  Congress.  He  recommended 
that  where  a  federal  judge  does  not  retire 
voluntarily  at  the  age  of  seventy,  after  ten 
years'  service,  it  shall  be  the  duty  of  the 
President  to  appoint  another  judge,  who 
shall  preside  over  the  court  and  have  prece- 
dence over  the  older  judge.  This,  he  thought, 
would  insure  at  all  times  the  presence  of  a 
judge  sufficiently  active  to  discharge  promptly 
and  adequately  the  duties  of  the  court.69 

The  recommendation  of  Attorney-General 
McReynolds  was  reaffirmed  in  1914  and  1915 
by  his  successor,  Mr.  Gregory,  and  became 
the  basis  of  a  bill  introduced  in  Congress  by 

6964th  Cong.,  1st  Sess.,  Senate  Kpt.  21. 


192  JUDICIAL  TENURE  IN 

Senator  Hoke  Smith.70  The  proposal  of  Mr. 
Smith  sought  to  give  the  President  discre- 
tionary power,  ' '  when  in  his  opinion  the  pub- 
lic good  requires, "  to  appoint  a  new  judge 
to  take  up  the  duties  of  a  judge  who  has 
become  too  aged  or  infirm  to  perform  useful 
service.  The  measure  was  at  once  challenged 
by  the  Republican  members  of  the  Senate  as 
a  partisan  attempt  "to  create  seventeen 
new  judgeships  for  deserving  Democrats. " 
Whatever  may  be  the  fate  of  this  and  other 
proposals  to  place  age  limits  upon  the  federal 
judges,  the  committee  investigation  has  ap- 
parently shown  that  there  are  more  super- 
annuated judges  upon  the  bench  than  was 
generally  supposed.71 

The  marked  differences  in  the  tenure  and 
mode  of  selection  of  State  and  federal  judges 
has,  of  course,  had  a  great  influence  in  deter- 
mining the  character  of  the  two  judicial  sys- 
tems. It  has  frequently  been  assumed  that 
the  State  courts  are  much  inferior  to  those 
of  the  nation.  That  this  has  not  always  been 

TO  Kecord,  64th  Cong.,  1st  Sess.,  pp.  60,  3154-3158.  This 
proposal  affects  only  the  circuit  and  district  court  judges, 
the  justices  of  the  supreme  court  remaining  untouched. 

7i  See  also  Taft:  Popular  Government,  pp.  158-161. 


THE  UNITED  STATES  193 

true  lias  been  a  matter  of  some  surprise  to 
European  observers  of  our  political  institu- 
tions. The  greater  importance  which  attaches 
to  a  federal  place  would  lead  one  to  look  for 
the  ablest  men  in  the  service  of  the  nation. 
But  the  federal  judiciary  has  set  a  standard 
to  which  public  opinion  has  compelled  the 
State  courts  to  conform.  Neither  inefficiency 
in  the  administration  of  the  law  nor  any  lapse 
from  judicial  dignity  will  long  be  tolerated  in 
a  community  whose  people  have  an  honest 
interest  in  their  government.  The  influence 
of  public  opinion  goes  far  to  promote  the 
success  of  the  judiciary  in  the  American 
States.72 

72  Nerincx :  L  'Organisation  Judiciare  aux  Etats-Unis,  pp. 
414-421;    Bryce:    American  Commonwealth,  i,  pp.   546-549. 


CHAPTER  V 
CONCLUSIONS 

The  independence  of  the  judiciary  so  neces- 
sary to  the  success  of  government  in  the 
United  States  requires  that  this  department 
shall  rest  on  the  sure  basis  of  the  Constitu- 
tion. Security  of  tenure,  freedom  from  legis- 
lative and  executive  control  and  from  merely 
temporary  political  changes  are  considera- 
tions of  great  importance.  In  England  the 
independence  of  the  judicial  office  is  secured 
because  the  judges  have  been  brought  under 
the  direct  control  of  the  Parliamentary  sover- 
eignty. They  are  amenable  for  any  miscon- 
duct to  the  sovereign  and  may  be  controlled 
by  whatever  procedure  Parliament  sees  fit. 
The  sovereignty  of  Parliament  being  undis- 
puted, the  judges  have  no  power  to  stay  its 
judgments.  Even  though  an  act  of  Parlia- 
ment be  against  common  reason  or  abridge 
the  fundamental  rights  of  Englishmen,  no 
power  vests  in  the  courts  to  set  it  aside  as 


THE  UNITED  STATES  195 

null  and  void.  ' '  True  it  is, ' '  declared  Black- 
stone,  "that  what  the  Parliament  doth,  no 
authority  upon  earth  can  undo."1 

In  the  United  States,  however,  government 
has  been  established  upon  a  basis  of  a  sepa- 
ration of  powers.  Sovereignty  rests  with  the 
people  who  delegate  the  functions  of  govern- 
ment to  three  co-ordinate  and  independent 
bodies.  At  the  same  time  the  function,  not 
of  controlling  the  other  departments  of  gov- 
ernment, but  of  defining  the  separation  and 
limits  of  their  power  has  devolved  upon  the 
judiciary,  and  "this  function  and  duty  of  the 
judiciary  distinguishes  the  American  system 
from  all  other  systems  of  government.  The 
perpetuity  of  our  institutions  and  the  liberty 
which  is  enjoyed  under  them  depend  in  no 
small  degree  upon  the  power  of  the  judiciary 
to  declare  null  and  void  all  legislation  that  is 
clearly  repugnant  to  the  supreme  law  of  the 
land."  The  judiciary  in  the  United  States 
does  not  sit  as  the  full  representative  of  the 
sovereignty  but  shares  with  the  other 
branches  of  the  government  the  exercise  of 
powers  delegated  to  it  and  restricted  by  the 

1  Commentaries,  i,  p.  161. 

2  Smyth  v.  Ames,  169  U.  S.  528. 


196  JUDICIAL  TENURE  IN 

Constitution.  It  has  thus  come  about  that 
the  behavior  of  the  judges  has  been  subjected 
to  conditions  and  limitations  elsewhere  un- 
known in  modern  governments. 

In  the  United  States  the  judge  has  a  double 
role.  In  the  first  place  he  is  the  officer  of  the 
government  in  whom  is  vested  the  judicial 
power  and  whose  business  it  is  to  administer 
justice.  In  this  capacity  all  will  admit  the 
necessity  of  his  independence.  He  becomes 
not  a  servant  of  the  people  but  "an  umpire 
in  the  game  of  litigation.  Unless  our  judges 
are  independent  and  protected  against  popu- 
lar clamor  and  the  demands  of  political 
changes,  they  cannot  perform  their  duty  to 
the  people,  in  the  administration  of  justice 
for  the  people. '  ™ 

In  addition  to  this  customary  function  of 
the  judicial  office,  the  judge  in  the  United 
States  has  become  the  guardian  of  the  Con- 
stitution. To  determine  whether  an  act  of 
the  legislature  is  in  harmony  with  the  written 
constitution,  and  to  refuse  to  recognize  as 
valid  any  enactment  made  ultra  vires,  has 
been  declared  to  be  the  very  es sense  of  judi- 
cial duty.  This  power  in  the  courts  has  for 

3  Judson :  Judiciary  and  the  People,  p.  252. 


THE  UNITED  STATES  197 

a  long  time  been  a  well-recognized  principle 
and  one  which  has  received  popular  accept- 
ance. The  supreme  court  has  declared  that 
"the  judicial  duty  of  upholding  the  provi- 
sions of  the  Constitution  as  against  any  leg- 
islation conflicting  therewith  has  become  now 
an  accepted  fact  in  the  judicial  life  of  the 
nation.  "4  This  power,  the  judges  have  been 
very  careful  to  explain,  is  not  to  be  exercised 
unless  legislative  enactments  brought  before 
them  are  plainly  in  contravention  of  some 
constitutional  principle.  Justice  Moody,  in 
his  dissenting  opinion  in  the  Employers' 
Liability  Cases,  said:  "The  court  has  never 
exercised  the  power  of  declaring  the  acts  of 
a  co-ordinate  branch  of  the  government  void 
except  where  there  is  no  possible  and  sen- 
sible construction  of  the  act  which  is  con- 
sistent with  the  fundamental  organic  law. 
The  presumption  that  other  branches  of  the 
government  will  restrain  themselves  within 
the  scope  of  their  authority,  and  the  respect 

4  Fairbank  v.  U.  S.,  181  U.  S.  286.  Georgia  has  em- 
bodied in  the  constitution  the  specific  provision  that  all 
legislative  acts  in  violation  of  the  constitution,  or  of  the 
Constitution  of  the  United  States,  are  void  and  the  judiciary 
shall  so  declare  them.  Georgia  Code,  1911,  Sec.  6392,  p. 
1478.  Constitution,  Sec.  iv,  par.  ii. 


198  JUDICIAL  TENURE  IN 

which  is  due  to  them  and  their  acts  admit  of 
no  other  attitude  from  this  court.  But  the 
economic  opinions  of  the  judges  and  their 
views  of  the  requirements  of  justice  and  pub- 
lic policy,  even  when  crystallized  into  well- 
settled  doctrines  of  the  law,  have  no  consti- 
tutional sancity.  They  are  binding  upon  suc- 
ceeding judges,  but  while  they  may  influence, 
they  cannot  control  legislators.  Legislators 
have  their  own  economic  theories,  their  views 
of  justice  and  public  policy,  and  their  views 
when  embodied  in  written  law  must  prevail. ' " 
Thus  the  doctrine  of  judicial  review  implies 
only  the  power  and  duty  to  insure  the  su- 
premacy of  the  constitution  and  to  refuse 
recognition  to  any  law  purporting  to  be  en- 
acted within  constitutional  authority,  but 
in  fact  beyond  the  power  delegated  to  the 
legislative  branch  of  the  government. 

Nevertheless,  it  is  precisely  because  of  his 
possession  of  this  latter  function  that  the 
demand  arises  for  the  political  responsibility 
of  the  judge.  In  this  capacity  the  judge  has 
come  to  exercise  an  important  power  of  de- 
termining public  policy,  and,  it  is  insisted, 
no  official  whose  duties  involve  the  determi- 

5  207  u.  a  433. 


THE  UNITED  STATES  199 

nation  of  public  policy  should  be  free  from 
popular  control.  One  advocate  of  this  view 
has  declared: 

Perhaps  the  most  important  influence  in  bring- 
ing about  a  demand  for  a  greater  popular  control 
of  the  courts  is  the  increasingly  important  position 
which  the  courts  have  come  to  exercise  as  political 
organs  of  the  government,  through  their  power  to 
declare  laws  unconstitutional  as  violative  of  the 
guaranties  of  "due  process  of  law"  and  "equal 
protection  of  the  laws."  These  guaranties  mean 
whatever  the  courts  in  any  particular  case  may 
decide  that  they  mean,  and  furnish  a  broad  founda- 
tion upon  which  the  courts  may  base  declarations 
of  unconstitutionality.  As  has  been  frequently 
suggested  in  recent  years,  the  courts  have  become 
practically  legislative  organs,  with  an  absolute 
power  of  veto  over  statutory  legislation  which  they 
may  regard  as  inexpedient;  and  this  power  has 
been  used  most  frequently  with  respect  to  social 
and  industrial  legislation  enacted  to  meet  new 
social  and  economic  conditions.6 

This  position  the  advocates  of  the  popular 
recall  have  accepted,  and  from  it  argue  that 
the  judges  have  become  legislators  and 

«W.  F.  Dodd:  Michigan  Law  Keview,  x,  p.  85;  Gilbert 
Eoe:  Our  Judicial  Oligarchy,  p.  216. 


200  JUDICIAL  TENURE  IN 

should  be  considered  as  such  in  our  govern- 
mental machinery. 

It  is,  however,  no  ground  for  depriving  the 
judicial  office  of  its  constitutional  safeguards 
that  judges  have  powers  which  cannot  be 
stated  with  precision  or  crystallized  into  hard 
and  fast  rules  of  conduct.  It  may  be  expected 
that  the  courts  will  endeavor  to  lay  down 
rules  of  law  which  are  mutually  harmonious, 
extending  these  rules  by  analogy.  And  this 
is  exactly  what  has  been  done.  The  United 
States  Supreme  Court  has  declared  in  favor 
of  ascertaining  the  intent  and  application  of 
the  "due  process  of  law"  clause  in  the  fed- 
eral Constitution  "by  the  gradual  process  of 
judicial  inclusion  and  exclusion,  as  the  cases 
presented  for  decision  shall  require,  with  the 
reasoning  on  which  such  decisions  may  be 
founded.  "7  What  interpretation  is  to  be 
placed  upon  the  terms  "due  process  of  law" 
and  ' l  equal  protection  of  the  laws ' '  cannot  be 
determined  in  the  abstract.  The  rule  of  rea- 
son alone  governs.  If  it  becomes  incumbent 
upon  the  court  to  pass  judgment  upon  legis- 
lation the  validity  of  which  is  challenged  as 
effecting  a  deprivation  of  life,  liberty  or 

7  Davidson  v.  New  Orleans,  96  U.  S.  97. 


THE  UNITED  STATES  201 

property  without  due  process  of  law,  it  must 
consider  the  reasonableness  of  each  case.8 

That  a  much  greater  burden  has  been 
thrown  upon  the  courts  since  the  Fourteenth 
Amendment  was  written  into  our  Constitu- 
tion must  be  admitted.  Between  1868  and 
1911,  six  hundred  and  four  decisions  were 
handed  down  by  the  Supreme  Court  of  the 
United  States  alone  interpreting  the  first 
section  of  the  amendment.  And  the  doctrine 
of  stare  decisis  has  not  resulted  in  the  crys- 
tallization of  these  opinions  into  definite  rules 
of  interpretation.  When  all  is  said,  there 
remains  a  broad  discretion  in  the  courts,  and 
the  "essential  elements  of  due  process  of 
law,  already  established  by  them,  are  singu- 
larly few,  though  of  wide  application  and 
deep  significance. " 

A  tremendous  expansion  of  the  doctrine  of 
judicial  review  has  been  apparent  for  the 
past  twenty-five  years.  As  one  writer  has 
pointed  out:  "The  legislative  activity  of 
American  courts  which  has  resulted  from 
this  extension  of  the  right  of  review  has  now 

s  Collins :  The  Fourteenth  Amendment  and  the  States, 
ch.  viii. 

9  Twining  v.  New  Jersey,  211  U.  S.  78. 


202  JUDICIAL  TENURE  IN 

become  a  commonplace  fact  of  our  political 
thought.  "10  Toward  this  view  the  modern 
interpretation  put  upon  due  process  of  law 
has  contributed  in  no  small  degree.  But  this 
growth  of  judicial  power  has  involved  noth- 
ing more  than  the  advance  of  constitutional 
limitations  along  lines  the  extension  of  which 
is  fully  within  the  scope  of  judicial  authority. 
There  is  here  involved  no  question  of  mere 
administration  where  the  responsibility  is 
purely  political  and  where  an  appeal  should 
be  made  to  the  ultimate  tribunal  of  the  public 
judgment,  exercised  either  in  the  pressure  of 
of  opinion  or  by  means  of  the  suffrage.  ' l  The 
fundamental  rights  to  life,  liberty,  and  the 
pursuit  of  happiness  are  secured  by  those 
maxims  of  constitutional  law  which  are  the 
monuments  showing  the  victorious  progress 
of  the  race  in  securing  to  men  the  blessings 
of  civilization  under  the  reign  of  just  and 
equal  laws,  so  that,  in  the  famous  language 
of  the  Massachusetts  Bill  of  Bights,  the  gov- 
ernment of  the  commonwealth  'may  be  a 
government  of  laws  and  not  of  men.'  For, 
the  very  idea  that  one  man  may  be  compelled 

10  Haines :  The  American  Doctrine  of  Judicial  Supremacy, 
p.  309. 


THE  UNITED  STATES  203 

to  hold  his  life,  or  the  means  of  living,  or  any 
material  right  essential  to  the  enjoyment  of 
life,  at  the  mere  will  of  another,  seems  to  be 
intolerable  in  any  country  where  freedom 
prevails,  as  being  the  essence  of  slavery 
itself.  .  .  ."" 

Judicial  legislation  was  not  unknown  be- 
fore the  adoption  of  the  Fourteenth  Amend- 
ment. More  than  a  century  ago  the  United 
States  Supreme  Court  began  the  task  of  de- 
nning the  obligation  of  contracts,  the  regu- 
lation of  commerce,  and  other  powers  con- 
ferred on  the  federal  government,  or  limita- 
tions imposed  upon  the  States.  Today  this 
work  cannot  be  said  to  have  been  finished. 
Nor  should  it  be  a  matter  of  surprise,  much 
less  of  bitter  denunciation,  that  the  courts 
have  not  stereotyped  through  the  paralyzing 
doctrine  of  stare  decisis  their  opinions  upon 
these  important  questions.  The  doctrine  of 
stare  decisis  will  always  remain  in  constitu- 
tional law  much  weaker  than  elsewhere. 
Constitutional  law  is  organic  and  must  grow 
to  meet  the  demands  of  changing  social  and 
economic  conditions.  In  a  recent  address 
before  the  New  York  Bar  Association,  Lord 

11  Yick  Wo  v.  Hopkins,  118  U.  S.  356. 


204  JUDICIAL  TENURE  IN 

Beading  declared  that  the  English  judges  are 
endeavoring  to  get  rid  of  the  doctrine  of 
stare  decisis  in  the  ordinary  civil  law  and  to 
decide  cases  on  principle.12  When  judges 
feel  the  need  of  overcoming  this  barrier  in 
applying  the  common  law,  it  is  safe  to 
prophesy  that  in  a  branch  of  law  that  touches 
public  policy  at  as  many  points  as  does  con- 
stitutional law  the  doctrine  of  stare  decisis 
cannot  endure. 

The  supremacy  of  law  established  by  the 
courts  and  the  demarcation  by  judicial  au- 
thority of  the  scope  and  limits  of  the  func- 
tions of  the  several  departments  of  govern- 
ment remain  fundamental  features  of  our 
system.  Those  who  argue  that  court  decis- 
ions are  mere  matters  of  opinion  as  to  the 
wisdom  of  legislative  enactments  or  as  to 
prevailing  views  of  morality  proceed  upon 
a  false  conception  of  the  basis  of  constitu- 
tional power.  Courts  do  not  decide  laws  void 
because  unwise;  they  only  declare  them  void 
because  in  conflict  with  the  constitution.  To 
ascertain  whether  an  act  is  in  harmony  with 
the  constitution  is  a  question  which  depends 
upon  technical  matters  of  law  and  fact,  which 

12  New  York  Times,  Oct.  15,  1915. 


THE  UNITED  STATES  205 

can  be  determined  efficiently  only  by  experts. 
That  the  courts  do  not  always  have  the  neces- 
sary machinery  to  examine  fully  such  ques- 
tions may  be  admitted.  But  it  is  equally  true 
that  the  courts  can  be  established  as  expert 
fact-determining  agents,  while  it  is  certain 
that  no  such  expertness  can  be  expected  of 
the  electorate.  It  does  not  involve  any  ques- 
tion of  popular  rule,  but  rather  how  may  be 
secured  the  most  efficient  government  and 
the  faithful  observance  of  the  law. 

Security  of  tenure  for  the  judicial  office 
becomes  all  the  more  important  because  of 
this  increase  in  the  burden  cast  upon  the 
courts.  To  the  end  that  he  may  administer 
justice  without  fear  or  favor  the  judge 
should  be  given  a  tenure  independent  of  all 
political  or  personal  or  temporary  considera- 
tions. The  demands  upon  our  legislative 
assemblies  increase  day  by  day.  Congress, 
as  well  as  the  State  legislatures,  may  be  ob^ 
served  pushing  their  legislative  power  closer 
to  the  line  of  their  constitutional  authority. 
The  number  of  cases  in  which  the  limits  of 
such  authority  are  necessarily  involved  must 
also  increase.  "Occasionally  a  court  finds 
that  some  new  experiment  in  legislation  or 


206  JUDICIAL  TENURE  IN 

in  administration  contravenes  some  long- 
established  limitation  upon  legislative  or  ex- 
ecutive power,  or  finds  that  some  crudely 
drawn  statute  is  inadequate  to  produce  the 
effect  that  was  expected  of  it,  or  enforces 
some  law  which  has  unexpected  results."13 
Irritation  and  impatience  toward  the  courts 
is  the  result. 

Popular  dissatisfaction  with  the  courts 
would  hardly  disappear  even  if  they  were 
deprived  of  the  power  to  pass  upon  the  con- 
stitutionality of  statutes.  It  would  still  re- 
main the  duty  of  the  courts  in  the  interpre- 
tation of  statutes  to  ascertain  the  meaning 
intended  by  the  legislature.  Statutes  cannot 
interpret  themselves ;  their  meaning  must  be 
declared  by  the  courts.  If  legislators  are 
careless  in  the  drafting  of  their  acts,  leaving 
to  the  judges  the  refinement  of  their  product, 
it  must  often  follow  that  what  is  declared 
by  the  courts  to  be  law  is  very  different  from 
that  which  was  originally  intended  by  the 
legislature. 

The  necessity  of  maintaining  undiminished 
the  power  of  a  really  independent  judiciary  is 

is  Eoot :  Judicial  Decisions  and  Public  Feeling,  62d  Cong., 
2d  Sess.,  S.  D.  271. 


THE  UNITED  STATES  207 

apparent  regardless  of  the  continuance  of  the 
doctrine  of  judicial  review.  To  heed  the 
appeal  to  passion  and  prejudice  and  hatred 
is  to  make  way  for  the  destruction  of  order. 
As  Mr.  Root  has  said:  "The  first  duty  of 
popular  self-government  is  individual  self- 
control/'  Not  merely  the  preservation  of 
those  inalienable  rights  guaranteed  by  the 
Constitution  but  the  rule  of  law  as  well  de- 
mands the  security  of  the  judicial  office. 

I 

It  has  been  argued  that  logically  both  the 
selection  and  the  removal  of  judges  ought  to 
be  vested  directly  in  the  electorate.  But 
practical  difficulties  interpose  themselves  in 
the  adoption  of  such  procedure.  The  f  ramers 
of  the  federal  Constitution  never  considered 
so  radical  a  departure.  Indeed,  the  proposal 
to  vest  the  selection  of  judges  in  the  national 
legislature  was  tabled  because  "  experience 
has  shown  the  impropriety  of  such  appoint- 
ments by  numerous  bodies.  "14  Even  to  vest 
the  selection  in  one  branch  of  the  legislature 
was  opposed  as  likely  to  become  a  "mere 

uFarrand:  i,  p.  232. 


208  JUDICIAL  TENURE  IN 

piece  of  jobbing/'15  In  order  to  secure  per- 
sonal responsibility  in  the  selection  of  judges, 
Edmund  Randolph  thought  the  respective 
votes  of  members  of  the  Senate  ought  to  be 
entered  on  the  journal.16  Although  not  all 
members  of  the  convention  were  agreed  upon 
the  exact  mode  of  selection,  it  was  uniformly 
thought  unwise  to  leave  the  choice  of  judges 
with  any  authority  administered  by  a  number 
of  individuals.17 

Hamilton  in  the  Federalist  suggested  that 
in  a  half  century  the  House  of  Representa- 
tives might  consist  of  three  or  four  hundred 
persons,  and  "a  body  so  fluctuating  and  at 
the  same  time  so  numerous  can  never  be 
deemed  proper  for  the  exercise  of  the  power 
of  appointment. "  At  the  same  time  he  con- 
demned the  selection  of  officers  by  a  council 
of  appointment,  the  method  then  in  vogue  in 
New  York,  where  the  governor  and  three 
other  men  in  secret  conclave  offered  un- 
bounded field  for  cabal  and  intrigue.18  The 
idea  of  election  by  the  people  at  large,  he 

isFarrand:  ii,  p.  41. 
is  Ibid.,  ii,  p.  80. 
IT  Ibid.,  ii,  p.  81. 
is  Federalist,  Ixxvii. 


THE  UNITED  STATES  209 

declared,  "will  be  readily  admitted  to  be 
impracticable;  as  waiving  every  other  con- 
sideration, it  would  leave  them  little  time  to 
do  anything  else."19 

Popular  election  of  officers,  now  so  general 
throughout  the  United  States,  has  resulted 
in  many  places  in  the  evil  which  Hamilton 
foretold.  The  burden  thrown  upon  the  elec- 
torate in  choosing  among  a  host  of  candidates 
those  best  fitted  for  office  has  been  so  great 
that  the  system  has  broken  down.  It  has 
been  fully  recognized  for  a  long  time  that 
the  voter  is  not  a  free  agent  in  the  selection 
of  the  officers  of  government  but  has  come  to 
rely  upon  the  advice  of  the  professional 
politician  who  really  determines  the  choice 
and  calls  upon  the  electorate  to  ratify  his 
work.  But  so  strongly  has  the  political 
party  become  entrenched  that  almost  all 
efforts  to  withdraw  from  its  grip  the  control 
even  of  the  judicial  offices  have  been  in  vain.20 

If  we  examine  the  history  of  our  State 
courts  there  would  seem  to  be  little  connec- 
tion between  the  mode  of  selection  and  the 

19  Federalist,  Ixxvi. 

20  Kales :   Unpopular  Government  in  the  United  States, 
chs.  ii,  xvii. 


210  JUDICIAL  TENURE  IN 

responsibility  of  the  judge.  It  is  undoubtedly 
true  that  only  where  the  influence  of  the  bar 
associations  can  be  felt  in  the  selection  of  a 
judge  can  there  be  an  adequate  guide  afforded 
for  the  discovery  of  the  relative  merits  of  the 
candidates  who  offer  themselves  for  places 
upon  the  bench.  It  is  important  that  legal 
ability,  success  at  the  bar,  and  personal  char- 
acter rather  than  political  activity  and  in- 
fluence shall  determine  the  selection  of  a 
judge.  But  all  of  the  weaknesses  which  have 
been  charged  against  a  judiciary  elected  by 
the  people  are  to  be  found  in  those  courts 
which  have  been  chosen  by  legislative  or 
executive  appointment.21 

It  has  been  claimed  that  an  appointive 
judiciary  is  superior  to  a  bench  chosen  by 
popular  vote.  Indeed,  a  comparison  has  been 
made  between  the  work  of  present-day  judges 
in  the  several  States  with  that  of  the  judi- 
ciary prior  to  1850  in  an  effort  to  prove  that 
recent  courts  have  shown  a  decline  in  con- 
structive law-making.  This  decline,  it  has 
been  asserted,  has  been  due  to  the  method 
of  selection  of  the  judges.22  It  would  be  very 

21  Supra,  p.  171. 

22  See  the  report  on  Efficiency  in  the  Administration  of 


THE  UNITED  STATES  211 

interesting  if  proof  could  be  shown  in  support 
of  this  contention.  But  a  most  exhaustive 
study  would  be  necessary  to  arrive  at  accu- 
rate conclusions.  Conditions  have  changed 
since  1850,  and  it  is  doubtful  whether  any 
court,  no  matter  how  chosen,  could  deal  with 
the  complex  problems  of  the  present  day  with 
the  results  attained  by  the  courts  in  the  so- 
called  classical  period  of  American  law. 

Any  attempt  to  draw  inferences  in  favor 
of  an  appointive  bench  is  certain  to  be  sub- 
ject to  notable  exceptions.  It  must  be  ad- 
mitted that  in  many  States  a  judiciary  of  the 
highest  order  has  been  maintained  by  popu- 
lar election.23  Not  all  popularly  elected  tri- 
bunals have  shown  the  illiberal  tendencies  to 
be  marked  in  the  decisions  of  the  elective 
courts  in  New  York  and  Illinois.24  The  su- 
preme court  of  Wisconsin,  an  elective  bench, 

Justice,  prepared  in  1914  for  the  National  Economic 
League  by  Charles  W.  Eliot,  Moorfield  Storey,  Louis  D. 
Brandeis,  and  Koscoe  Pound. 

23Taft:  Popular  Government,  p.  190. 

s*  In  Ives  v.  South  Buffalo  B.  B,  Company,  201  N.  Y.  271, 
workmen 's  compensation  legislation  was  overturned.  In 
Eitchie  v.  State,  155  111.  98,  an  act  limiting  the  hours  of 
labor  for  women  was  set  aside.  The  Illinois  court  later 
upheld  the  constitutionality  of  such  legislation.  Eitchie  v. 
Wayman,  244  111.  509. 


212  JUDICIAL  TENURE  IN 

in  passing  upon  the  subject  of  workmen's 
compensation  legislation  handed  down  a  de- 
cision as  trenchant  and  as  enlightened  as  the 
pronouncement  of  any  appointive  court.25  A 
mediocre  bench  is  almost  certain  to  be  techni- 
cal and,  in  questions  of  constitutional  law, 
strict  and  reactionary.  But  it  would  be  un- 
fair to  say  that  in  every  State  where  the 
choice  of  judges  has  been  entrusted  to  the 
people  the  judiciary  is  characterized  by 
mediocrity  or  that  it  is  in  every  case  inferior 
to  an  appointive  bench. 

The  method  of  selecting  judges  is  perhaps 
best  determined  by  local  conditions.  The 
general  conclusion  to  be  drawn  from  * i  reports 
and  opinions  of  leading  lawyers  throughout 
the  country  is  that  the  character  and  ability 
of  the  bench  are  governed,  practically,  by  the 
tone  and  demands  of  the  average  public  senti- 
ment in  a  given  locality,  rather  than  by  the 
particular  system  through  which  such  senti- 
ment asserts  itself/'26  In  Vermont,  where 
the  supposedly  discredited  system  of  legis- 

25  Borgnis  v.  Falk  Co.,  147  Wis.  327. 

2«  See  -the  report  of  Simon  Fleischmann :  Influence  of  the 
Bar  in  the  Selection  of  Judges,  Proceedings  of  New  York 
State  Bar  Association,  xxviii,  pp.  60-130. 


THE  UNITED  STATES  213 

lative  appointment  is  in  vogue,  the  judiciary 
is  one  of  the  most  satisfactory  in  the  country. 
Although  appointments  are  made  for  but  two 
years,  public  opinion  has  long  since  taken  a 
firm  stand  so  that  judges  are,  as  a  matter  of 
course,  re-elected  from  term  to  term  during 
life.  Ehode  Island  with  the  same  system  has 
a  much  weaker  bench,  since  members  of  the 
legislature  are  frequently  chosen  without  re- 
gard for  legal  ability  or  personal  character. 
Like  contrasts  are  to  be  found  in  the  States 
in  which  the  judiciary  is  appointed,  as  well 
as  in  those  in  which  it  is  popularly  elected. 
In  Wisconsin  the  elective  judiciary  has 
achieved  unusual  distinction.  Chief  Justice 
Winslow  of  the  Wisconsin  supreme  court, 
speaking  of  the  Wisconsin  system,  said: 

I  would  claim  no  exceptional  ability  or  wisdom 
for  the  "Wisconsin  electorate,  but  I  do  claim  that 
remarkable  results  have  been  reached  in  the  line 
of  removing  the  bench  from  party  politics,  results 
which  it  will  be  found  difficult,  if  not  impossible  to 
parallel  in  any  of  our  States. 

It  is  a  remarkable  fact  that  while  Wisconsin  was 
one  of  the  pioneer  States  in  the  full  and  complete 
adoption  of  the  elective  system,  its  supreme  court 
has  been  exceptionally  free  from  violent  and  fre- 


214  JUDICIAL  TENURE  IN 

quent  changes.  During  the  entire  history  of  the 
separate  supreme  court  from  its  organization  in 
1855  to  the  present  time,  it  has  had  but  twenty-five 
judges.  Since  a  very  early  period  in  the  history  of 
Wisconsin,  with  a  single  recent  exception,  no  sitting 
justice  of  the  supreme  court  who  has  been  a  candi- 
date for  re-election  has  been  defeated,  notwith- 
standing a  number  of  attempts  in  that  direction, 
and  judges  who  have  reached  that  bench  have  been 
given  practically  a  life  tenure.  This  result  is 
principally  due  to  a  sentiment  which  has  slowly 
crystallized  among  the  people  of  the  State  to  the 
effect  that  judges  of  that  court  should  not  be  nomi- 
nated by  political  parties  and  that  a  sitting  judge 
who  has  performed  his  duties  faithfully  should  be 
retained  during  his  years  of  usefulness,  regard- 
less of  his  opinions.27 

While  public  opinion  can  be  shaped  so  as  to 
secure  wise  selections  by  the  electorate,  there 
is  a  strong  tendency  to  undervalue  the  ser- 
vices of  experts  in  our  government.28  But 
the  judicial  office  is  one  which  requires  a  high 
degree  of  expertness  for  its  proper  adminis- 
tration. For  this  reason  it  is  important  that 
the  bar  be  able  to  make  its  influence  felt  by 

27  Kansas  Bar  Association  Proceedings,  1914,  pp.  43-44. 
28Hadley:  Undercurrents  in  American  Politics,  pp.  171- 
177. 


THE  UNITED  STATES  215 

the  selecting  authority  and  that  judges  be 
given  secure  tenure.  It  is  not  enough  that 
bar  associations  have  opportunity  to  stamp 
with  their  approval  the  aspirants  for  judicial 
places.  We  should  have  a  special  class  of 
men  from  whom  the  best-equipped  judges 
may  be  selected.  In  England  the  legal  pro- 
fession is  made  up  of  solicitors,  who  prepare 
papers,  and  barristers  or  advocates,  who 
argue  cases  in  the  courts.  It  is  from  this 
latter  class  that  the  judges  are  recruited.29 
In  the  United  States  no  such  special  group 
is  available.  Our  judges  are  selected  from 
the  mass  of  lawyers  in  a  given  community. 
It  makes  no  difference  whether  the  selection 
is  by  the  county  central  committee  of  the 
dominant  party,  or  by  the  self-serving  peti- 
tions under  primary  laws,  or  by  the  State 
executive.  All  are  eligible  who  have  passed 
the  bar  examinations.  Most  lawyers  have 
spent  their  time  in  client  care-taking  and, 
upon  their  elevation  to  the  bench,  must  learn 
the  art  of  conducting  trials  from  the  begin- 
ning. It  is  impossible  to  expect  from  such 
men,  no  matter  how  they  are  chosen,  the 
expert  knowledge  of  the  rules  of  law  and  of 

29  Lowell:  The  Government  of  England,  ii,  pp.  468-470. 


216  JUDICIAL  TENURE  IN 

practice  that  would  be  gained  by  a  long  expe- 
rience in  handling  litigated  problems  in  the 
courts.30 

But  much  more  important  than  the  method 
of  selection  is  the  problem  of  guaranteeing 
judges  in  office  security  of  tenure.  To  leave 
the  judge  dependent  upon  the  caprice  of  a 
temporary  majority  in  the  community  is  to 
deprive  him  of  every  safeguard  in  the  admin- 
istration of  justice.  In  such  a  situation  few 
men  would  have  the  courage  to  decide  against 
the  majority  when  justice  and  law  require. 
Nor  would  his  independence  be  adequate  if 
his  tenure  in  office  depended  upon  the  will 
of  the  legislature. 

The  framers  of  the  federal  Constitution 
rejected  the  procedure  of  removal  on  address 
in  the  belief  that  it  was  inconsistent  with  the 
necessary  independence  of  the  courts.  In 
England  the  expedient  has  proved  almost 
impossible  of  practical  use,  although  its 
presence  in  the  British  constitution  has 
doubtless  served  to  remind  judges  of  the 
responsibility  under  which  they  act.31  The 
failure  of  attempts  in  England  to  effect  a 

so  Kales:  Illinois  Law  Review,  iv,  pp.  316-317. 
si  Hearn :    Government  of  England,  pp.  82-89. 


THE  UNITED  STATES  217 

removal  on  address  has  been  due  in  nearly 
all  cases  to  inability  to  define  the  source  of 
power  and  the  scope  of  the  authority  of  the 
two  houses  of  Parliament  to  undertake  such 
proceeding.  One  view  has  been  that  such 
proceedings  are  judicial  in  character,  gov- 
erned by  lex  terras,  where  the  accused  is  en- 
titled to  be  heard,  may  employ  counsel,  and 
where  the  rules  of  evidence  are  strictly  ob- 
served. The  other  view  maintains  that  the 
procedure  is  discretionary  with  the  houses, 
and  an  address  may  be  voted  for  any  or  no 
reason.  Thus  it  is  an  act  of  power,  and  the 
procedure  is  entirely  under  the  control  of  the 
houses  of  Parliament, — a  part  of  lex  parlia- 
menti.** 

In  theory  the  latter  view  has  prevailed,  and 
many  touching  references  have  been  made  to 
the  direct  control  of  the  sovereignty  over  the 
English  judges.  But  in  practice  no  attempt 
has  been  made  to  remove  a  judge  on  address 
without  granting  him  all  the  rights  and  privi- 
leges accompanying  a  judicial  proceeding. 
The  most  serious  consideration  is  given 
charges  against  the  judges,  and  on  more  than 

32  Mcllwain :  Tenure  of  English  Judges,  American  Politi- 
cal Science  Review,  vii,  p.  225  et  seq. 


218  JUDICIAL  TENURE  IN 

one  occasion  members  of  both  houses  of  Par- 
liament have  been  sharply  called  to  order  for 
reflecting  upon  the  judges  in  their  judicial 
capacity.  When  in  1861  the  Earl  of  Leitrim 
brought  vague  charges  against  Chief  Justice 
Monohan  in  the  House  of  Lords,  he  was  se- 
verely scored  by  members.  The  lord  chan- 
cellor pointed  out  that  it  would  be  entirely 
proper  to  move  an  address  but  he  hoped  the 
lords  would  not  permit  any  member  to  bring 
forward  such  charges  without  giving  the  de- 
fendant an  opportunity  to  be  heard.33 

The  American  commonwealths  which  have 
adopted  the  expedient  of  removal  on  address 
have  found  it  impossible  to  operate  except  as 
a  substitute  for  the  impeachment  procedure. 
It  would  be  inconsistent  with  our  system  of 
government  to  adopt  any  form  of  removal 
which  did  not  operate  in  accordance  with  the 
law  of  the  land.  When  we  do  not  allow  a 
criminal  to  be  convicted  except  by  a  jury 
sworn  to  decide  the  case  according  to  the  law 
and  the  facts,  it  would  be  tragically  grotesque 
to  allow  a  public  officer  to  be  condemned  when 
he  has  had  no  opportunity  to  be  heard  in  his 

as  Hansard :  Debates,  clxiii,  p.  900.  See  also  Parlia- 
mentary Debates,  5th  Series,  xli,  p.  2779. 


THE  UNITED  STATES  219 

own  defense.  It  has,  therefore,  been  the 
practice  in  most  cases  before  voting  an  ad- 
dress to  hold  an  inquiry  in  every  way  anal- 
ogous to  a  judicial  proceeding.  Even  in 
Massachusetts,  where  the  language  of  the 
constitution  leaves  no  doubt  as  to  the  un- 
limited power  of  the  legislature  to  address 
the  governor  for  the  removal  of  a  judge,  it 
has  been  the  settled  practice  to  grant  the 
accused  a  hearing,  summon  witnesses  in  his 
defense,  and  to  observe  the  established  rules 
of  evidence.34  Although  in  theory  many  of 
the  judges  in  our  State  courts  hold  their 
offices  removable  on  joint  address  of  the  two 
branches  of  the  legislature,  in  practice  it  has 
become  impossible  to  effect  any  such  removal 
without  a  procedure  more  costly  and  more 
cumbrous  than  that  of  impeachment.  One 
may  easily  agree  with  Professor  Mcllwain 
that  the  federal  convention  showed  great 
wisdom  when  they  followed  the  suggestion 
of  James  Wilson  and  omitted  the  expedient 
of  removal  on  address  from  the  Constitu- 
tion.35 

s*  See  Foster  on  the  Constitution,  Appendix,  for  a  de- 
scription of  most  of  the  removals  from  judicial  offices  in 
the  several  States. 

ss  Loc.  cit. 


220  JUDICIAL  TENURE  IN 

That  we  have  improper  judges  must  be  ad- 
mitted. But  weaknesses  in  the  judiciary 
spring  either  from  incompetence  or  from 
corruption.  The  incompetent  judge  is  in- 
variably the  result  of  unwise  selection.  Want 
of  ability,  lack  of  judicial  temperament,  and 
a  natural  inaptitude  for  judicial  service  are 
faults  which  can  be  discerned  if  care  be  ex- 
ercised in  the  selection.  The  corrupt  judge, 
however,  is  often  the  product  of  circum- 
stances impossible  to  forecast.  In  his  case  a 
speedy  removal  from  office  becomes  neces- 
sary in  the  interest  of  the  community.  But 
whether  a  judge  be  incompetent  or  corrupt 
is  a  question  of  fact  to  be  determined  only 
upon  a  careful  review  of  all  the  evidence  in 
the  case.  Only  such  procedure  as  will  per- 
mit a  careful  survey  of  all  the  facts  in  a  given 
case  before  removal  will  be  found  consistent 
with  the  proper  independence  of  the  judi- 
ciary. 

II 

The  sufficiency  of  the  impeachment  pro- 
cedure to  protect  the  people  against  the  evils 
of  an  incompetent  or  corrupt  judiciary  has 
been  vigorously  challenged.  It  has  been  de- 


THE  UNITED  STATES  221 

clared  that  experience  lias  shown  the  ma- 
chinery of  impeachment  to  be  cumbrous  and 
unduly  difficult  of  utilization.  In  these  claims 
there  is  a  large  element  of  truth.  However, 
it  has  become  manifest  not  that  a  substitute 
method  of  procedure  should  be  made  avail- 
able, but  that  efforts  should  be  bent  toward 
the  simplification  of  the  constitutional 
remedy. 

The  experience  of  England  and  America  is 
against  the  expedient  of  removal  on  legisla- 
tive address.  The  only  really  effective  re- 
movals have  been  those  secured  through  the 
use  of  the  impeachment  process.  Recourse 
to  the  use  of  the  impeachment  clause  has  been 
by  no  means  as  frequent  as  was  expected  by 
the  f  ramers  of  the  Constitution.  They  looked 
forward  to  trials  upon  articles  of  impeach- 
ment as  not  unusual.  That  we  have  so  sel- 
dom brought  offenders  to  the  bar  of  the 
Senate  has  been  due  to  the  narrow  construc- 
tion placed  upon  the  constitutional  provision. 
But  this  the  Senate  has  now  overcome,  and 
under  the  ruling  in  the  Archbald  case  the 
stock  arguments  against  the  impeachment 
process  lose  much  of  their  force. 

Several  propositions  to  alter  the  impeach- 


222  JUDICIAL  TENURE  IN 

ment  procedure  with  a  view  to  the  saving  of 
time  and  expense  have  recently  been  brought 
forward.  While  the  Archbald  trial  was  in 
progress  a  resolution  was  offered  authorizing 
the  Senate  "to  make  such  amendments  and 
additions  to  the  rules  of  impeachment,  except 
in  the  case  of  President,  Vice-President, 
members  of  the  Cabinet,  and  the  Supreme 
Court,  as  would  enable  testimony  to  be  taken 
by  the  judiciary  committee  and  the  findings 
of  fact  be  reported  to  the  Senate."36  Such 
procedure  would  be  similar  to  the  taking  of 
testimony  in  a  court  of  equity,  the  judiciary 
committee  of  the  Senate  acting  in  the  capac- 
ity of  master.  But  the  proposal  met  with 
objection  on  the  ground  that  such  method 
would  not  be  impressive. 

The  apparent  ease  with  which  the  convic- 
tion of  Judge  Archbald  was  secured  called 
even  greater  attention  than  before  to  the 
undue  amount  of  time  spent  by  the  Senate  in 
hearing  witnesses  and  disposing  of  details 
in  connection  with  the  determinations  of  fact. 
One  senator  remarked  that  "it  was  like  bring- 
ing out  a  steam  roller  to  crush  a  toad." 
Senator  Pomerene  suggested  that  power  be 

so  62d  Cong.,  3d  Sess.,  S.  Ees.  412. 


THE  UNITED  STATES  223 

given  Congress  "to  provide  for  other  means 
of  impeaching  civil  officers,  except  the  Presi- 
dent, Vice-President,  and  the  Supreme 
Court.  "37  At  the  same  time  a  resolution  was 
introduced  into  the  House  of  Eepresentatives 
to  be  formulated  into  a  constitutional  amend- 
ment giving  the  Senate  power  to  order  the 
trial  in  cases  of  impeachment  before  twelve 
senators,  the  concurrence  of  eight  of  that 
number  being  necessary  to  secure  a  convic- 
tion.38 

Whatever  changes  may  be  made  should  be 
with  a  view  to  the  simplification  of  procedure 
and  the  economy  of  time,  yet  they  should  not 
destroy  the  independence  of  the  judiciary  so 
essential  to  the  preservation  of  our  govern- 
ment. The  salutary  effect  of  an  impeach- 
ment such  as  that  of  Judge  Archbald  cannot 
be  estimated.  It  will  influence  judicial  be- 
havior for  many  years  to  come.  At  the  same 
time  the  judges  will  remain  unawed  and  free 
to  exercise  those  difficult  functions  which  gov- 
ernment in  this  country  has  laid  upon  them. 

s?  62d  Cong.,  3d  Sess.,  S.  J.  Ees.  152. 
ss  62d  Cong.,  3d  Sess.,  H.  J.  Ees.  384. 


INDEX 


Acts  of  Congress:  Act  of 
March  23,  1792,  with  re- 
spect to  invalid  pensions, 
39;  judiciary  act  of  1789, 
51;  judiciary  act  of  1801, 
53;  repeal  of  judiciary 
act  of  1801,  61-76;  at- 
tempt to  repeal  25th  sec- 
tion, judiciary  act  of 
1789,  138;  act  of  April 
10,  1869,  granting  pen- 
sions for  disability,  190. 

Adams,  John :  condemns 
subjection  of  judiciary  to 
crown,  3;  makes  partisan 
appointments  to  judiciary 
in  1801,  55-57;  demands 
power  of  impeachment  in 
colonial  legislatures,  101. 

Adams,  John  Quincy:  de- 
scribes trial  of  Pickering, 
117;  dissents  from  vote  to 
remove  Massachusetts 
judges,  127. 

Addison,  Alexander :  makes 
partisan  charges  to  juries, 
46;  impeached  and  re- 
moved, 111. 

Age  limits:  in  New  York 
constitution,  4 ;  unpopu- 


larity of,  186;  proposed 
for  federal  judges,  192. 

Arizona  legislature :  peti- 
tions for  abolition  of  com- 
merce court,  86. 

Ashley,  James  M. :  proposes 
age  limits  for  federal 
judges,  188. 

Archbald,  Kobert  W.;  ap- 
pointed to  commerce 
court,  145 ;  charges 
against,  145-147;  articles 
of  impeachment  against, 
149-152;  conviction  of, 
152. 

Bacon,  Augustus  O. :  in  de- 
bate on  abolition  of  com- 
merce court,  93. 

Bassett,  Eichard:  appointed 
to  circuit  court,  56. 

Bayard,  James  A. :  de- 
nounces repeal  of  judi- 
ciary act  of  1801,  76. 

Bayard  v.  Singleton,  case  of, 
19-20. 

Blackstone,  .  Sir  William: 
tenth  rule  for  construing 
statutes,  14;  theory  of 
Parliamentary  supremacy, 
195. 


226 


INDEX 


Board  of  Trade:  recom- 
mends change  in  tenure  of 
colonial  judges,  2. 

Borah,  William  E.:  in  de- 
bate on  abolition  of  com- 
merce court,  91. 

Bradbury,  Theophilus :  re- 
moved on  address,  128. 

Breckinridge,  John :  moves 
repeal  of  judiciary  act  of 
1801,  66;  denies  doctrine 
of  judicial  review,  71. 

Buchanan,  James :  quoted, 
142. 

Butler,  Pierce :  opposes 
creation  of  inferior 
courts,  35;  opposes  ju- 
diciary act  of  1789,  51. 

Chase,  Associate  Justice : 
impeachment  and  acquit- 
tal of,  120-123. 

Commerce  court :  established, 
78 ;  charges  against  judges 
of,  79;  jurisdiction  of,  82- 
83;  attempts  to  enlarge 
its  jurisdiction,  84-86 ; 
movement  to  abolish,  88- 
94. 

Congress:  empowered  to  es- 
tablish inferior  courts, 
36;  passes  act  to  regulate 
claims  to  invalid  pen- 
sions, 39;  creates  circuit 
courts,  47-48,  53-55;  es- 


tablishes inferior  courts, 
51-53;  repeals  judiciary 
act  of  1801,  66-76;  abol- 
ishes commerce  court,  79- 
94;  power  of,  over  in- 
ferior courts,  98-100;  pro- 
vides pensions  for  dis- 
abled judges,  190. 

Contempt  of  court:  defined 
in  Pennsylvania,  113. 

Council  of  Appointment : 
selects  New  York  judges, 
5;  advised  by  the  legisla- 
ture, 15. 

Council  of  Censors:  adopted 
in  Pennsylvania,  7;  copied 
in  Vermont,  7;  recom- 
mendations of,  in  Penn- 
sylvania, 9. 

Council  of  Eevision :  adopted 
in  New  York,  7;  rejected 
by  federal  convention,  24. 

Davis,  Woodbury :  removed 
from  office,  133. 

Declaration  of  Independ- 
ence: quoted,  2. 

Dickinson,  John :  proposes 
removal  of  judges  on  ad- 
dress in  federal  conven- 
tion, 29. 

Dodd,  Walter  F.:  quoted, 
199. 

"Due  process  of  law": 
meaning  of,  200-201. 


INDEX 


227 


Eastman,  Nehemiah :  pro- 
poses age  limits  for  fed- 
eral judges,  188. 

Ellsworth,  Oliver :  succeeds 
John  Jay  as  Chief  Jus- 
tice, 47;  denounces  Re- 
publicans,  47. 

Employers'  Liability  Cases, 
197. 

Executive  appointment :  in 
early  State  constitutions, 
5;  advocated  in  federal 
convention,  31 ;  denounced 
in  Maryland  constitutional 
convention,  176;  sup- 
planted by  popular  elec- 
tion, 181  ff.;  criticism  of, 
210  ff. 

Federal  convention:  Ran- 
dolph's plan  of  govern- 
ment, 22;  the  New  Jersey 
plan,  23;  rejects  Coun- 
cil of  Revision,  24;  atti- 
tude of,  towards  judicial 
review,  25-27;  gives  fed- 
eral judiciary  power  to 
negative  State  laws,  27- 
29;  grants  federal  judges 
tenure  during  good  be- 
havior, 29-30;  debate  in, 
on  selection  of  judges,  31- 
33;  debate  in,%  on  estab- 
lishment of  inferior  courts, 
34-36 ;  adopts  impeach- 


ment   procedure,    103-107. 

Ford,  Henry  Jones:  quoted, 
46-47. 

Fourteenth  Amendment:  in- 
fluence of,  on  judicial  re- 
view, 201. 

Genet,  Edmund:  in  contro- 
versy with  Washington, 
43. 

George  III:  alters  tenure  of 
colonial  judges,  2;  grants 
salaries  to  judges,  3. 

Gerry,  Elbridge:  defends  ju- 
dicial review,  25;  denies 
power  of  Congress  to  con- 
strue laws,  38. 

Giles,  William  B. :  urges  re- 
peal of  judiciary  act  of 
180],  58-59;  theory  of 
judicial  tenure,  73 ;  theory 
of  impeachments,  120- 
122;  in  Virginia  conven- 
tion of  1830,  170;  urges 
legislative  control  of 
courts,  170. 

Goddard,  Calvin :  distin- 
guishes between  power  to 
abolish  an  office  and  re- 
moval of  the  incumbent, 
75. 

Good  behavior :  established 
by  Long  Parliament,  2; 
granted  colonial  judges, 
2;  adopted  in  early  State 


228 


INDEX 


constitutions,  4;  proposed 
by  Kandolph  for  federal 
judges,  23;  proposals  to 
abandon,  in  the  United 
States,  167;  abandoned 
in  State  constitutions, 
171  ff. 

Gorham,  Nathaniel :  pro- 
poses selection  of  judges 
by  Executive  and  Senate, 
32. 

Greene,  Eay:  appointed  to 
district  court,  56. 

Greer,  Associate  Justice: 
forced  to  retire,  190. 

Haines,  Charles  G. :  quoted, 
201. 

Hamilton,  Alexander  : 
praises  the  federal  judi- 
cial system,  36;  expounds 
doctrine  of  judicial  re- 
view, 37-38;  view  of  im- 
peachments, 106,  119;  con- 
demns popular  election  of 
judges,  212. 

Harrison,  Nathaniel:  re- 
moved on  address,  131- 
132. 

Hayburn's  Case,  40-41. 

High  crimes  and  misde- 
meanors: inserted  in  im- 
peachment clause,  104; 
meaning  of,  105-106;  as 
construed  in  Chase  im- 


peachment, 142;  as  con- 
strued in  Archbald  im- 
peachment, 153. 

Hill,  William  H. :  appointed 
to  district  court,  56. 

Holmes  v.  Walton:  case  of, 
11. 

Hull,  Cordell:  offers  sub- 
stitute for  impeachment, 
140. 

Humphreys,  West  H. :  im- 
peachment and  removal  of, 
143. 

Impeachment :  denied  colo- 
nial legislatures,  101 ;  pro- 
vided in  Pennsylvania, 
101;  adopted  by  federal 
convention,  103-107; 
judges  in  Hayburn's  case 
threatened  with,  108;  Jef- 
ferson's criticism  of,  109- 
110;  of  Judge  Addison, 
111 ;  of  Pennsylvania 
judges,  1]2;  of  Ohio 
judges,  113;  of  Judge 
Pickering,  116-119;  of 
Associate  Justice  Chase, 
120-123;  theory  of,  in 
Massachusetts,  126-127; 
substitutes  for,  140-141; 
weaknesses  of,  142-143 ;  of 
Judge  Humphreys,  143 ; 
of  Judge  Archbald,  144- 
153 ;  proposed  modifica- 


INDEX 


229 


tions  in  procedure  of,  221- 
223. 

Independence  of  the  judi- 
ciary: meaning  of,  1;  ex- 
tent of,  in  early  State 
constitutions,  4  ff . ;  theory 
of  James  M.  Varnum,  18; 
attitude  of  federal  con- 
vention towards,  123ff.; 
attacked  by  partisans  of 
Jefferson,  73;  attitude  of 
Jacksonian  faction  to- 
wards, 16Sff.;  in  Eng- 
land, 194;  importance  of, 
in  the  United  States, 
196  ff. 

Inferior  courts:  debate  in 
federal  convention  on,  34- 
36;  opposition  to  creation 
of,  in  first  Congress,  51- 
53;  changes  in,  1801,  54; 
affected  by  repeal  of  ju- 
diciary act  of  1801,  75; 
affected  by  abolition  of 
commerce  court,  78-94 ; 
judicial  decisions  on 
power  of  Congress  in  re- 
lation to,  96-97. 

Ingersoll,  Jared:  appointed 
to  circuit  court,  56. 

Interstate  commerce  com- 
mission: power  of,  under 
Hepburn  Amendment,  80; 
' '  positive ' '  and  ' '  nega- 
tive" orders  of,  81-82. 


Iredell,  James:  upholds  doc- 
trine of  judicial  review, 
20. 

Jay,  John:  resigns  as  Chief 
Justice,  44. 

Jefferson,  Thomas:  criticism 
of  legislative  control  of 
the  courts,  8;  criticises 
court  in  Matthew  Lyon's 
case,  48;  suggests  repeal 
of  judiciary  act  of  1801, 
60;  criticism  of  impeach- 
ment procedure,  109-110; 
directs  impeachment  of 
Judge  Pickering,  110;  de- 
nounces tenure  during 
good  behavior,  136-137;  re- 
fuses to  recognize  doc- 
trine of  judicial  review, 
164;  advocates  term  of 
years  for  judicial  office, 
165. 

' '  Judge  breaking  " :  in 
Pennsylvania,  112. 

Judicial  review:  right  of, 
denied  in  Vermont,  9;  in 
New  Jersey,  11-13;  in 
New  York,  13-16;  in 
Rhode  Island,  16-19;  in 
North  Carolina,  19-20;  at- 
titude of  federal  conven- 
tion towards,  25-27;  of 
State  laws  by  federal 
courts,  27-29;  defended  in 


230 


INDEX 


the  "Federalist,"  37;  up- 
held in  first  Congress,  38- 
39;  first  exercise  of,  by 
federal  courts,  39-43;  in 
Ohio,  113;  asserted  by 
United  States  Supreme 
Court,  159;  accepted  by 
State  courts,  159;  oppo- 
sition in  Ohio,  160;  up- 
held in  Georgia,  161;  in 
Connecticut,  162;  de- 
nounced by  Jefferson,  164; 
defended  by  Madison, 
166;  scope  of,  195-198;  re- 
cent growth  of,  201. 
Judicial  tenure:  in  colonies, 
2-3;  in  early  State  con- 
stitutions, 4;  theory  of,  in 
federal  convention,  23-33; 
discussed  in  debate  on 
creation  of  inferior  courts, 
52;  theory  of  John  Tay- 
lor, 61-66;  discussed  in  de- 
bate on  repeal  of  judi- 
ciary act  of  1801,  66-76; 
discussed  in  debate  on 
abolition  of  commerce 
court,  88-94;  theory  of 
John  Marshall,  98;  in 
State  constitutions,  171  ff. ; 
necessity  for  security  of, 
205  ff. 

Kent,  Chancellor:  age  limits 
force   retirement   of,    186. 


Key,  Philip  Barton:  ap- 
pointed to  circuit  court, 
56. 

Kittera,  John  Wilkes:  ap- 
pointed United  States  dis- 
trict attorney,  57. 

Lansing,  John:  opposes  fed- 
eral negative  on  State 
laws,  27. 

Lecompte,  Joseph:  proposes 
term  of  years  for  federal 
judges,  167. 

Lee,  Charles:  appointed  to 
circuit  court,  56. 

Lee,  Henry:  opposes  crea- 
tion of  inferior  courts, 
51. 

Legislative  appointment:  in 
early  State  constitutions, 
5;  discussed  in  federal 
convention,  31-33;  evils  of, 
179-180. 

Loring,  Charles  Greeley:  re- 
moved on  address,  133. 

Lyon,  Matthew :  punished 
for  sedition,  48. 

Mcllwain,  Charles  H. : 
quoted,  217. 

McKean,  Thomas :  rejoices 
over  removal  of  Judge  Ad- 
dison,  111. 

McReynolds,  James  C. :  pro- 
poses plan  for  retirement 
of  federal  judges,  191. 


Macon,  Nathaniel :  attacks 
tenure  during  good  be- 
havior, 165. 

Madison,  James :  criticism  of 
State  constitutions,  6 ;  pro- 
poses selection  of  judges 
by  Senate,  32 ;  in  debate 
on  President's  power  of 
removal,  38;  defends 
creation  of  inferior  courts, 
52;  in  debate  on  impeach- 
ment power,  104;  defends 
course  of  federal  judi- 
ciary, 166. 

Marbury  v.  Madison :  case  of, 
159. 

Marcy,  William  L. :  criti- 
cises New  York  courts, 
175. 

Marshall,  John:  view  of  the 
repeal  of  the  judiciary 
act  of  1801,  98;  defines 
doctrine  of  judicial  re- 
view, ]59;  great  constitu- 
tional decisions  of,  137; 
in  Virginia  convention  of 
1830,  170;  opposes  legis- 
lative control  of  courts, 
171. 

Martin,  Luther:  defends 
judicial  review,  26;  drafts 
clause  giving  federal 
courts  negative  over  State 
laws,  28. 


INDEX  231 

Mason,  George:  in  debate  on 
impeachment  power,  104. 

Mason,  Jonathan :  urges 
necessity  for  independent 
judiciary,  71. 

Mason,  Stevens  Thomson: 
condemns  judiciary  act  of 
1801,  57;  theory  of  judi- 
cial tenure,  67-68. 

Mercer,  John  Francis:  ar- 
gues for  independent  ju- 
diciary, 24. 

Merrill  v.  Sherburne:  case 
of,  159. 

* '  Midnight  judges ' ' :  peti- 
tion Congress,  76. 

Moody,  Associate  Justice : 
retired  on  account  of  dis- 
ability, 190;  defines  judi- 
cial review,  197. 

Morris,  Gouverneur:  opposes 
federal  negative  on  State 
laws,  28;  opposes  selec- 
tion of  judges  by  Senate, 
32;  in  debate  on  repeal 
of  the  judiciary  act  of 
1801,  69-72. 

Murray,  William  Vans  : 
urges  law  to  require 
courts  to  give  notice  when 
declaring  acts  void,  42. 


Nelson,  Knute:   opposes  de- 
priving   judges    of    com- 


232 

merce  court  of  their  com- 
missions, 89-90. 

Nevada  Eailroad  Commis- 
sion :  petitions  for  aboli- 
tion of  commerce  court, 
86. 

' l  Notes  on  Virginia ' ' : 
quoted,  8. 

O 'Gorman,  James  A.:  in  de- 
bate on  abolition  of  com- 
merce court,  94. 

Oliver,  Chief  Justice:  at- 
tempt to  impeach  before 
colonial  legislature,  3. 

Otis,  James:  argument  of, 
in  Writs  of  Assistance 
case,  10. 

Otis,  Harrison  Gray:  ap- 
pointed United  States  dis- 
trict attorney,  57. 

Owen,  Robert  S. :  proposes 
' '  legislative  recall ' '  of 
judges,  141. 


Paine,  Elijah:  appointed  to 
district  court,  56. 

Passmore,  Thomas :  peti- 
tions Pennsylvania  legisla- 
ture, 112. 

Pease,  Calvin :  impeached 
and  acquitted,  113;  office 
declared  vacant,  114;  re- 
elected,  161. 


INDEX 

Phillips,  Wendell :  argues 
for  removal  of  Judge  Lor- 
ing,  133. 

Pickering,  John:  misconduct 
of,  115 ;  impeachment  and 
removal  of,  116-119. 

Pickering,  Timothy:  quoted, 
122. 

Pinckney,  Charles :  argues 
for  separation  of  legisla- 
tive and  judicial  depart- 
ments, 24;  advocates  se- 
lection of  judges  by  leg- 
islature, 32. 

Popular  election  of  judges: 
embodied  in  Georgia  con- 
stitution 1776,  4;  adopted 
in  State  constitutions, 
]  79  ff . ;  proposed  for  in- 
ferior federal  courts,  185- 
186;  evils  of,  209;  con- 
demned by  Hamilton,  212. 

Procter  and  Gamble  Com- 
pany v.  United  States: 
case  of,  84. 

Public  opinion:  influence  of, 
214. 


Randolph,  Edmund :  intro- 
duces plan  of  federal  gov- 
ernment, 22;  laments 
weakness  of  federal  judi- 
ciary, 44;  seeks  respon- 
sibility in  selecting  judges, 
208. 


INDEX 


233 


Eandolph,  John:  theory  of 
judicial  tenure,  74;  mana- 
ger in  trial  of  Justice 
Chase,  122;  proposes  re- 
moval of  judges  on  ad- 
dress, 123;  in  Virginia 
convention  of  1830,  170. 

Eead,  Jacob:  appointed  to 
district  court,  56. 

Reading,  Lord:  quoted,  204. 

Removal  on  address:  re- 
jected by  federal  conven- 
tion, 30;  proposed  by 
John  Randolph  for  fed- 
eral judges,  123;  adopted 
in  England,  124;  copied 
in  early  State  constitu- 
tions, 125;  purpose  of, 
126;  in  Massachusetts, 
126-128;  in  Kentucky, 
128-129;  in  New  Hamp- 
shire, 130;  in  West  Vir- 
ginia, 131-132;  in  Maine, 
132-133;  decline  in  use  of, 
134;  struggle  to  intro- 
duce, in  federal  govern- 
ment, 135-141;  practice  of, 
in  England,  216-218;  in- 
sufficiency of,  221. 

Root,  Elihu:  statement  upon 
conviction  of  Judge  Arch- 
bald,  148;  quoted,  206. 

Rutledge,  John:  opposes  cre- 
ation of  inferior  courts, 
34. 


Rutgers  v.  Waddington :  case 
of,  13-16. 

Selection  of  judges:  in  early 
State  constitutions,  156- 
157;  in  Ohio  constitution 
of  1802,  157-159;  reac- 
tion against  legislative 
and  executive  methods  in, 
171-172;  adoption  of  pop- 
ular election  for,  179-186; 
debates  on,  in  federal 
convention,  207-208;  crit- 
icism of,  210-215. 

Separation  of  powers :  theory 
of  Montesquieu,  5 ;  as 
stated  in  Massachusetts 
constitution,  6. 

Sherman,  Roger :  advocates 
selection  of  judges  by  leg- 
islature, 32;  opposes  crea- 
tion of  inferior  courts,  34. 

Shields,  John  K.:  in  debate 
on  abolition  of  commerce 
court,  91. 

Smith,  Hoke:  in  debate  on 
abolition  of  commerce 
court,  90-91. 

Spaight,  Richard  D.:  de- 
nounces exercise  of  judi- 
cial review,  20. 

Spencer,  Ambrose :  quoted, 
143. 

Stare  decisis:  weakness  of, 
in  constitutional  law,  203- 
204. 


234 


INDEX 


Stone,  David:  contends  for 
power  of  Congress  to  re- 
move judges,  69. 

Story,  Joseph:  condemns  re- 
peal of  judiciary  act  of 
1801,  78;  view  of  removal 
on  address,  127. 

Taft,  William  Howard:  op- 
poses abolition  of  com- 
merce court,  88. 

Taylor,  John:  theory  of  ju- 
dicial tenure,  61-66. 

Term  of  office:  proposition 
to  limit,  167;  limited  in 
State  constitutions,  172- 
177;  lengthened,  182-183. 

Trevett  v.  Weeden:  case  of, 
16-19. 

Varnum,  James  M. :  argues 
in  defense  of  Khode  Is- 
land judges,  18. 


Walsh,  Thomas  J.:  in  de- 
bate on  abolition  of  com- 
merce court,  92-93. 

Washington,  George :  asks 
advice  of  judges,  43 ;  fare- 
well address  quoted,  45. 

Williamson,  Hugh :  moves 
adoption  of  impeachment 
clause,  104. 

Wilson,  James:  argues  for 
Council  of  Kevision,  26; 
opposes  selection  of  judges 
by  legislature,  31. 

Wilson,  Woodrow :  attitude 
of,  on  abolition  of  com- 
merce court,  95. 

Winslow,  John  B.:  quoted, 
213-214. 

Wolcott,  Oliver :  appointed 
to  circuit  court,  56. 

Works,  John  D. :  argues  for 
broad  view  of  impeach- 
ment power,  147-148. 

Writs  of  Assistance :  case  of, 
10. 


RETURN  TO  DESK  FROM  WHICH  BORROWED 

LOAN  DEPT. 

This  book  is  due  on  the  last  date  stamped  below,  or 

on  the  date  to  which  renewed. 
Renewed  books  are  subject  to  immediate  recall. 


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UNIVERSITY  OF  CALIFORNIA  LIRARY 


